p style='margin-top:0in;margin-right:0in;margin-bottom:.75pt;margin-left:0in'>Terms of Use

Updated February 21, 2020

THESE TERMS OF (“AGREEMENT”) GOVERN YOUR USE OF THE SERVICES (AS DEFINED BELOW) OF INTELLIPSE, INC., A DELAWARE CORPORATION (“INTELLIPSE”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE INTELLIPSE’S SERVICES. BY ACCEPTING THESE TERMS BELOW OR BY USING INTELLIPSE’S SERVICES IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE SERVICES (“EFFECTIVE DATE”).

1. USE OF THE SERVICES

1.1 Use of Services. Subject to the terms of this Agreement, Intellipse grants to Customer a limited, non-exclusive, non-transferable right to access and use the Services solely for Customer’s internal business purposes and not for resale or further distribution. Customer’s right to access and use the Services shall be limited to the Subscription Plan for the Services purchased by Customer and all terms and conditions herein. Except for the rights expressly granted to Customer in this Agreement, Intellipse and its licensors retain all right, title and interest in and to the Services, including all related rights protected by applicable intellectual property laws, including U.S. copyright law, trade secret, and international treaties.

1.2 Authorized Users. Subject to the limits of the Subscription Plan, Customer may allow its Authorized Users to access and use the Services; provided Customer shall be responsible for its Authorized Users in compliance with Customer’s obligations under the terms of the Agreement.

1.3 Definitions.

Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.  

Services” shall mean the online, web-based, and mobile-based applications provided by Intellipse through an Intellipse Site, ordered by Customer’s selection and acceptance of a Subscription Plan by means of (i) the online purchasing process on a website operated by Intellipse or its Affiliates or (ii) an executed Order Form.  

Authorized User” means any individual provided with access to the Services by Customer.  

Intellipse Site” shall mean  https://intellipse.com  or other designated websites or IP addresses for mobile applications communicated to Customer by Intellipse.

Order Form” shall mean an ordering document for the Services, including without limitation statements of work, signed by both parties and incorporating the terms of this Agreement by reference.  

Subscription Plan” shall mean a specified pricing plan and term length with associated features, functionality and volume tiers for the Services purchased by Customer. 

1.4 Subscription Plans.

1.4.1 The Services are provided through Subscription Plans.   However, from time to time, Intellipse may offer Subscription Plans without fees, but which have limited features, functionality, and volume tiers for the Services.  Intellipse may modify such free Subscription Plans at any time in its sole discretion or even discontinue them entirely without prior notice to Customer.

1.4.2 Legacy Services. From time to time Intellipse may cease to offer certain Subscription Plans. Intellipse shall use commercially reasonable efforts to support such legacy Subscription Plans until the end of the term during which the Subscription Plan is deprecated or as otherwise terminated.  Notwithstanding the foregoing, Intellipse reserves the right to discontinue supporting legacy Subscription Plans at any time without prior notice.

1.5 A La Carte Fees. Except as otherwise set forth in an applicable Order Form, in the event Customer’s use of the Services exceeds the volume tier of the Subscription Plan purchased by Customer, Intellipse may immediately charge additional fees on a prorated basis (“ A La Carte Fees”) at  120% of the unit price applicable to Customer’s selected volume tier for its Subscription Plan, and the Customer shall be obligated to pay any A La Carte Fees in the following billing month.

1.6 Modifications.  Subject to pricing terms agreed in an Order Form, Intellipse may modify the pricing of its services at any time and add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion without prior notice to Customer.  Except as otherwise set forth in an applicable Order Form, upon written notice, Intellipse may increase the fees of the services in a forthcoming term of the Subscription Plan by up to five percent (5%) for like services. 

2. ACCESS TO AND USE OF THE SERVICES

2.1 Restrictions. Customer represents, warrants and covenants to us that it shall use the Services only in compliance with (i) all applicable laws and regulations (including, without limitation, (a) any applicable data protection, privacy, do-not-call, telephone and Short Message Service (SMS) laws and regulations, and (b) the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)) (collectively, “Applicable Laws”), and (ii) the terms of this Agreement (including, without limitation, the Privacy Policy). Customer shall not and shall not permit or authorize any third party to: (i) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to the Services, or use the Services for the benefit of any third party, or make the Services available to anyone other than its Authorized Users; (ii) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of Applicable Laws, or to process, send or store Prohibited Information (as such term is defined below), infringing or unlawful material, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) circumvent or disable any digital rights management, usage rules, or other security features of the Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (iv) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Services, or any portion thereof; (v) access or use the Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Services; or (vi) use the Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Services.  Customer acknowledges and agrees that the Services are not compliant with HIPAA and agrees to fully indemnify us with respect to any claims arising out of, or in connection with, any use of the Services in a manner which is alleged to violate HIPAA.

Prohibited Information” shall mean (a) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including, but without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (b) government issued personal identifiers, including, but without limitation, driver’s license numbers, passport numbers, or other state issued identification numbers; (c) bio-metric identifiers, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modeling data, or health data; (d) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (e) real time geo-location data which can track or identify an individual’s precise movements; (f) passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); (g) export-controlled information for which Customer has not obtained all required export licenses or government approvals; or (h) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties.

2.2.     Calling and Messaging through the Services.  You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the electronic transmission of messages and calls that you create and initiate through the Services, or which are created or initiated by us on your behalf in connection with the Services (in each case including, without limitation, via SMS messages).  You expressly authorize us to communicate with your customers in order to provide our Services (including, without limitation, for marketing purposes).  Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages (including SMS messages), calls, broadcasts, and campaigns transmitted through the Services by visiting the following websites:

•Federal Trade Commission,  http://www.ftc.gov  

•Federal Communications Commission,  http://www.fcc.gov  

•DoNotCall Registry Info,  http://www.donotcall.gov  

In particular, you acknowledge that the Telephone Consumer Protection Act of 1991 together with final rules and regulations (collectively, “TCPA Rules”), generally prohibits (1) the making of telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) the making of any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number, in each case, without prior express consent. You understand and agree that you are solely responsible for complying with the TCPA Rules and any other state, federal or local laws, rules and regulations, in effect from time to time, governing electronic communications between you and the owners of the phone numbers you initiate calls or messages to through the Service.  Without limiting the foregoing, you represent and warrant that the owners of the phone numbers have given prior express consent or otherwise opted-in to the receipt of such calls or messages as required by any Applicable Laws. You agree that you will include clear opt-out/unsubscribe information on your calls or messages when required to do so by any Applicable Laws and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, to the extent applicable. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or calls to any individuals after they request DNC status.

The TCPA Rules, the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules ( http://www.donotcall.gov ) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. We are in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your use of the Service to initiate calls or messages.

2.3 Maintenance. Intellipse does not guarantee the maintenance or continued function of, and Intellipse reserves the right to change, discontinue, delete or deprecate, at any time and at Intellipse’s sole discretion, any product feature, support service and any custom report template or queries that may be made available to or accessible by Customer, including through the Services.

2.4 Excess Burden. Intellipse reserves the right to restrict, suspend, or terminate access to the Services at any time, if in Intellipse’s sole determination, Customer is using the Services in a manner that violates Applicable Laws or the terms of this Agreement, fails to make payment to Intellipse, or creates an Excess Burden on Intellipse’s systems.  “Excess Burden” means the Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or use of Services is causing immediate, material and ongoing harm to Intellipse or Intellipse’s other customers.

2.5 Beta Services. From time to time, Intellipse may make Beta Services available to Customer at no charge.  Customer may choose to utilize such Beta Services in Customer’s sole discretion.  Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to Customer.  Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind and so, are not considered “Services” hereunder, even if displayed in the user interface; however, all restrictions herein, Intellipse’s reservation of rights and Customer’s obligations concerning the Services shall apply equally to Customer’s use of Beta Services.  Intellipse may discontinue Beta Services at any time in its sole discretion and may never make them generally available.  Intellipse will have no liability for any harm or damage arising out of or in connection with a Beta Service.  “Beta Services” means a product, service or functionality provided by Intellipse that may be made available to Customer to try at Customer’s option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.  Beta Services may be considered Confidential Information of Intellipse, if so denoted or communicated by Intellipse to Customer.  Customer will not disclose (including, but not limited to, in a press release or public statement) any information about, involving or regarding Beta Services (including the existence of), except as agreed by Intellipse in writing.

2.6 Acceptable Use Policy. Customer will not use the Services to: (i) upload, post, email, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm Intellipse or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) use third party email lists, including purchased, rented, scraped or illegally obtained email lists, to send targeted emails, notifications or messages with the Services; (v) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vi) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vii) upload, post, email, or otherwise transmit any Spam or Unsolicited Bulk Email (as defined by Spamhaus at  https://www.spamhaus.org/definition.html ), unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (viii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (ix) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (x) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (xi) “stalk” or otherwise harass another; or (xii) collect or store personal data about other users. Customer will abide by Apple’s and/or Android’s terms of use requirements and restrictions regarding push notifications.

3. PAYMENT TERMS

3.1 Billing Terms. Subscription Plans are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term, or as otherwise stated in the Order Form, unless Customer chooses not to renew such plan by writing to Intellipse at  help@intellipse.com  or Intellipse terminates the Agreement.  Fees paid hereunder, including A La Carte Fees, are non-refundable and shall be billed in U.S. Dollars. Except as otherwise set forth in an Order Form, fees due hereunder will be billed to Customer’s credit card and Customer authorizes the card issuer to pay all such amounts and authorizes Intellipse (or its billing agent) to charge the credit card account until the cards are terminated as set forth herein; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.

3.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with its purchases hereunder (excluding taxes based on Intellipse’s net income or property), and any related penalties and interest. Customer will make all required payments to Intellipse free and clear of, and without reduction for, any withholding taxes. Customer will, upon Intellipse’s request, provide Intellipse with official receipts issued by appropriate taxing authorities, or such other evidence as Intellipse may reasonably request, to establish that such Taxes have been paid.

3.3 Credits. Intellipse may, in its sole discretion, choose to offer credits for the s, including discount codes or promotional campaigns.  Credits are non-transferable and do not have any monetary or cash value. Any credits can only be used to offset fees per the terms and conditions expressly identified by Intellipse and, unless otherwise stated by Intellipse, shall no longer be redeemable ninety (90) days from the date of issuance.

3.4 Failure of Payment.  If Customer fails to pay fees within five (5) business days of notice of delinquent payments, in addition to other available remedies, Intellipse reserves the right to suspend or terminate access to the Services and delete the Customer Content (as defined below).

  4.PRIVACY AND INFORMATION SECURITY

4.1 Data Privacy Addenda. To the extent Customer Content that includes Personal Information is sent by Customer through the Services and Customer’s use of the Services involves transferring Personal Information outside the European Economic Area (including the United Kingdom) or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of a Data Processing Addendum to be entered into between you and Intellipse shall apply to such Personal Information and be incorporated into the Agreement. To the extent Customer Content includes Personal Information derived from California residents or consumers, the terms of Intellipse’s California Data Privacy Addendum found at  https://www.intellipse.com/california-privacy  shall apply to such Personal Information and be incorporated into the Agreement. Under no circumstances will Intellipse be deemed a “data controller” or a “business” with respect to Customer Content under the Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data on the free movement of such data, and repealing Directive 95/46/EC (“ General Data Protection Regulation”), the California Consumer Privacy Act of 2018, or any relevant or replacement law or regulation. “Personal Information” means any Customer Content processed by Intellipse pursuant to the Agreement, relating to an identified or identifiable natural person or household; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.

4.2 Hosting and Processing. Customer Content is hosted and stored by Intellipse or its service providers in the United States or elsewhere as otherwise agreed to by Customer. In providing the Services, Intellipse or its service providers may process Customer Content, including, without limitation, any associated Personal Information, within the European Economic Area, the United States and in other countries and territories.

4.3 Tracking. Subject to, and in accordance with, the documentation that accompanies or is made generally available for the Services by Intellipse (“Documentation”), the Services are intended to allow Customer to (i) learn how a user of Customer’s mobile applications, mobile websites, web connected devices or web properties with which Customer has integrated the Services (“ End Users”) use Customer’s mobile applications, mobile websites, web connected devices or web properties, (ii) educate End Users with relevant content, and (iii) segment End Users, including, without limitation, for purposes of retargeting and conducting marketing (for e.g. SMS follow-ups or retargeting campaigns). The Services give Customer the ability to track and send data, media and other information provided by or on behalf of Customer to the Services, excluding Prohibited Information (collectively, “ Customer Content”), in part by using a first-party cookie placed on End User’s device from Customer’s server, and if Customer uses messaging features in the Services, web beacons. Additionally, pursuant to the Documentation and Customer’s implementation of Intellipse’s integration library, the Services may automatically track or by default track certain End User data, including, but not limited to, the time of an event, the elements an End User has interacted with, metadata and other details about these elements including duration of interaction, how an End User came to Customer’s site, what search engine and search keywords End Users may have used to get to Customer’s site, information about the device used by End User, such as their operating system and browser, the city or country location of an End User, and tokens and IDs for push notifications.  Notwithstanding the foregoing, with Intellipse’s prior written approval, Intellipse shall provide Customer with additional code in order to limit the tracking and transmission to the Services of certain of Customer’s data.

4.4 Compliance with Laws. Customer agrees to comply with all Applicable Laws (including, without limitation, privacy, data protection, HIPAA and consumer protection laws and regulations) in connection with Customer’s use of the Services, including without limitation requirements of proper notice and consent to send Personal Information to the Services and compliance with the General Data Protection Regulation.

4.5 Customer Content Rights. Intellipse does not sell, lease, rent or otherwise share for consideration Customer Content.  Intellipse will share Customer Content only under the following circumstances:

(i) With select service providers who perform work on Intellipse’s behalf to provide the Services;

(ii) To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that Intellipse will, to the extent permissible by applicable law, endeavor to notify Customer if Intellipse has received a lawful request for Customer Content);

(iii) To protect the rights and property of Intellipse, its agents, other Intellipse customers, and others, including, but not limited to, enforcing Intellipse’s agreements, policies, and this Agreement;

(iv) In an emergency, including to protect Intellipse’s information security or the personal safety of any person;

(v) In connection with a sale or transfer of all or a part of Intellipse’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or

(vi) As directed by Customer, including through its use of the Services.

Intellipse stores, uses and accesses Customer Content for the limited purposes of: (a) performing Intellipse’s obligations under this Agreement and any applicable Order Form; (b) responding to service issues and requests for support; (c) complying with Customer’s instructions; and (d) maintaining and improving the Services. Intellipse may also use Customer Content in a de-identified and aggregated form (“Aggregated Data”) for Intellipse’s own business purposes, including use, duplication, modification, and creation of derivative works regarding usage and performance of Aggregated Data.  Aggregated Data does not directly or indirectly identify Customer, End Users, or individual data subjects.  Intellipse shall own all right, title and interest to the Aggregated Data and any derivative works thereof.

4.6 Customer Content Deletion. Intellipse provides Customer with access to Customer Content and the ability to delete Customer Content upon request.  Upon cessation or termination of Intellipse’s relationship with Customer, Intellipse has no obligation to maintain or provide any Customer Content and will promptly delete or destroy Customer Content no longer in active use unless prohibited by law.  

4.7 Security. Intellipse will maintain appropriate physical, technical and organizational controls designed to safeguard Customer Content within its cloud storage from unauthorized access, use or disclosure. These will include measures designed to store Customer Content on servers located in a physically secured location; and the use of firewalls, access controls and similar security technologies designed to protect Customer Content from unauthorized disclosure.  Intellipse takes no responsibility and assumes no liability for any Customer Content other than its express security obligations in this section.

4.8 Password Security. Certain parts of the Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify Intellipse if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Intellipse of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Services that is known to Customer.

4.9 Privacy Statement. Intellipse’s tracking and use of information collected about Customer on Intellipse Sites are governed by the Intellipse Privacy Statement, available at  https://www.intellipse.com/privacy . The Intellipse Privacy Statement does not cover information Intellipse processes on Customer’s behalf in the performance of the Services and it shall be Customer’s obligation to provide Customer’s own privacy statement or notice to its End Users.  In addition, Intellipse may collect registration and other information about Customer as Intellipse’s customer through Intellipse Sites.

5. THIRD-PARTY SERVICES

The Services or Documentation may display, contain links to, or connect with third-party products, services, and websites (collectively, “Third-Party Services”). Any statements, services, offers, or other information that constitutes part of the Third-Party Services made available by other users or other third parties on the Services or Intellipse Sites, or which are accessible through or may be located using the Services are those of the respective authors or producers and not of Intellipse or its stockholders, directors, officers, employees, agents, or representatives. Intellipse does not control Third-Party Services and does not guarantee the accuracy, integrity or quality of such Third-Party Services. Third-Party Services are governed solely by the terms and conditions of those Third-Party Services and Intellipse is not responsible for the performance of and does not endorse any Third-Party Services or any information or materials advertised in any Third-Party Services. Intellipse is not responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any Third-Party Services. It is Customer’s responsibility to evaluate the information, opinion, advice, or other services available on and through the Services.

Intellipse does not provide the equipment required to access the Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Services (e.g., charges by Internet service providers).

6. PROFESSIONAL SERVICES

6.1 Scope. If, and only if, Customer purchases professional services through an Order Form (“Professional Services”), then the terms and conditions of this Section shall additionally apply.  The Professional Services primarily involve supporting the implementation of Intellipse’s software development kit into Customer’s software and integration of Customer Content with and into the Services, {" "} including, but not limited to, the use of the Intellipse platform.

6.2 Assistance.  Intellipse and Customer agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a professional manner. Customer agrees to provide, at no cost to Intellipse, timely and adequate assistance and other resources reasonably requested by Intellipse to enable the performance of the Professional Services (collectively, “Assistance”). Neither Intellipse nor its subcontractors will be liable for any deficiency in performance of Professional Services to the extent resulting from any acts or omissions of Customer, including, but not limited to, Customer’s failure to provide Assistance as required hereunder.

6.3 Professional Services Personnel. In performing the Professional Services, Intellipse will provide such resources, and utilize employees, service providers or subcontractors (“Professional Services Personnel”) as it deems necessary to perform the Professional Services or any portion thereof. Intellipse may replace Professional Services Personnel in its normal course of business or subcontract the Professional Services, provided that Intellipse shall remain responsible for the performance of Professional Services.

6.4 Change Order. The Professional Services may only be changed through a change order mutually executed by the parties (“Change Order”), which may entitle Intellipse to an adjustment in fees pursuant to the changes reflected in the Change Order. Intellipse shall not be obligated to perform any differing or additional Professional Services unless the parties have executed a Change Order.

6.5 Expenses.  At Intellipse’s request, Customer shall reimburse Intellipse for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Intellipse providing the Professional Services (“Expenses”). Intellipse will provide reasonable documentation for all Expenses as requested by Customer. Customer shall reimburse Intellipse for Expenses in the month after they are incurred in accordance with the payment terms in the Order Form.

6.6 Warranties.  Intellipse hereby represents and warrants that the Professional Services shall be performed in a timely and professional manner by Intellipse and its Professional Services Personnel, consistent with generally-accepted industry standards; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at Intellipse’s option, reperformance of the Professional Services.

6.7 Work Product.  Excluding Customer Confidential Information and Customer Content, Intellipse shall own all rights, title and interest in any reports, presentations and other materials or results generated as a result of the Professional Services (“Work Product”), including all intellectual property rights therein.  In the event that any Work Product is held to be owned by the Customer, Customer hereby assigns to Intellipse all right, title and interest therein or, to the extent such assignment is not permitted or effective, hereby grants to Intellipse a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such Work Product. Subject to this Agreement, Intellipse shall grant to Customer a non-exclusive, non-transferable, non-sub-licensable license to use the Work Product solely for Customer’s internal business purposes in connection with Customer’s authorized use of the Services.

7. TRADEMARKS AND PUBLICITY

7.1 Intellipse Trademark. “Intellipse,” the Intellipse logo, and any other product or service name or slogan displayed on the Services are trademarks of Intellipse, Inc. or its Affiliates, and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Intellipse or the applicable trademark holder. Customer shall not use any metatags or any other “hidden text” utilizing “Intellipse” or any other name, trademark or product or service name of Intellipse without prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Intellipse and may not be copied, imitated or used, in whole or in part, without prior written permission. All other trademarks, registered trademarks, product names and company names or logos that appear in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Intellipse.

7.2 Publicity. Customer agrees to allow Intellipse, and hereby does provide Intellipse with the necessary rights and licenses, to use Customer’s name and logo on the Intellipse Sites, blog and/or in marketing materials, including case studies and as press references, to identify Customer as a customer of Intellipse.  Customer agrees to act as a customer reference for the Services and Customer agrees to respond reasonably to all such reference contacts.

8. CONFIDENTIAL INFORMATION; FEEDBACK

8.1 Confidential Information. “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party. Notwithstanding the foregoing, the provisions of Sections 8.1 and 8.2 will not apply to information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure by the disclosing party (as demonstrated by records in existence at the time of disclosure); (v) is independently developed by the recipient (as demonstrated by records created reasonably contemporaneously with such independent development); or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Laws, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

8.2 Use of Confidential Information. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party, other than to perform its obligations under this Agreement; (iii) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (iv) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement, upon request of the other party.

8.3 Feedback. If Customer or its Authorized Users provide Intellipse any suggestions, recommendations, or other feedback relating to Intellipse’s current or future products or services, including Beta Services (“Feedback”), Intellipse shall have the right to use the Feedback in any manner, including, but not limited to future enhancements and modifications to the Services. Customer hereby grants to Intellipse and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party.  In addition, Intellipse shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services and Professional Services.

9. WARRANTIES; DISCLAIMER OF WARRANTIES

9.1 Services. Intellipse warrants to Customer that the Services will perform materially in accordance with the Documentation.  Intellipse’s sole liability and Customer’s exclusive right and remedy for a breach of the foregoing warranty is for Intellipse to correct or re-perform the nonconforming Services.

9.2 Customer Content. Customer warrants that it owns or has obtained all necessary rights, title and interest, provided all appropriate notices and obtained all necessary consents, to use the Services to track End Users and transfer the Customer Content to Intellipse and its third-party subcontractors for the purpose of processing such Customer Content in accordance with this Agreement.  

9.3 Export Compliance. Customer warrants it shall comply with all U.S. export control and economic sanctions laws and regulations as they relate to access to and use of the Services. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services is prohibited under U.S. or other applicable laws or regulations (a “ Prohibited Jurisdiction”) and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) Customer is not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) Customer shall not permit its Authorized Users or any agents to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer, its Authorized Users and its agents are located.

9.4 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF SERVICES PROVIDED BY INTELLIPSE, INCLUDING, BUT NOT LIMITED TO, THE SERVICES, ANY PROFESSIONAL SERVICES AND CUSTOMER SUPPORT SERVICES IS AT CUSTOMER’S SOLE RISK. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INTELLIPSE AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. INTELLIPSE DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND CUSTOMER RELIES ON SUCH SERVICES AT CUSTOMER’S OWN RISK. INTELLIPSE DOES NOT GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND CUSTOMER USES CUSTOM REPORTING FEATURES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH INTELLIPSE’S SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH INTELLIPSE’S SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM INTELLIPSE OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. LIMITATION OF LIABILITY

EXCEPT AS MAY OTHERWISE BE REQUIRED BY APPLICABLE LAW, INTELLIPSE AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF INTELLIPSE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CUSTOMER’S USE OF THE SERVICES OR INTELLIPSE’S PROVISION OF ANY OTHER SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF INTELLIPSE AND ITS SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) OR INTELLIPSE’S PROVISION OF ANY OTHER SERVICES, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO INTELLIPSE FOR CUSTOMER’S USE OF THE SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.

11. INDEMNITY

Except where otherwise inapplicable or prohibited by law, Intellipse will defend, indemnify and hold harmless Customer, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses (including reasonable attorneys’ fees), and liability arising in connection with any third-party claims caused by (i) Intellipse’s violation of any U.S. registered patent, trademark or copyright owned by a third-party, (ii) Intellipse’s gross negligence or willful misconduct.  Intellipse shall have sole control over the defense of any such claim.

Except where otherwise inapplicable or prohibited by law (including in the state of New Jersey), Customer will defend, indemnify and hold harmless Intellipse, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses (including reasonable attorneys’ fees), and liability in connection with any third-party claims caused by Customer’s use of the Services, Customer’s violation of this Agreement or Applicable Laws (including, without limitation, HIPAA), Customer Content, or Customer’s violation of any rights of a third party through use of the Services.

12. MISCELLANEOUS

12.1 Governing Law; Venue. Enforcement of any dispute relating to this Agreement will be governed by the laws of the State of California, excluding its conflict and choice of law principles and the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Services is in the state and federal courts located in City and County of Santa Clara, California, and Customer irrevocably agrees to submit to the jurisdiction of such courts.

12.2 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Intellipse (not to be unreasonably withheld or delayed). Notwithstanding any provision in this Agreement, either party may assign this Agreement in its entirety, without the consent of the other party, to its successor in connection with a merger or acquisition (including by operation of law), corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.3 Entire Agreement. Subject to an Order Form, this Agreement sets forth the entire agreement and understanding between the parties with respect to its subject matter and supersedes and merges all prior and contemporaneous oral and written agreements, discussions and understandings between the parties with respect to its subject matter. In the event the parties have previously entered into a separate non-disclosure or confidentiality agreement, such agreement is terminated as of the Effective Date of this Agreement. In the event the parties enter into a separate non-disclosure or confidentiality agreement subsequent to the Effective Date, such separate agreement shall not modify, supplement or supersede the terms of this Agreement unless expressly set forth in such subsequent agreement. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.  

12.4 Effect of Termination. The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer, Feedback, Indemnity, and Limitation of Liability.  This Agreement contains the entire understanding of the parties on the subject matter hereof.

12.5 Government Contractors. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, the Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.

12.6 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.

12.7 Headings. In this Agreement headings are inserted for convenience only and shall not affect the meaning of the text and references to the singular include the plural and vice versa.

12.8 Independent Contractors.  In making and performing this Agreement, Customer and Intellipse act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, joint venture, partnership or employer and employee relationship between them.  Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of the other party. Any fees, expenses or other amounts paid by Customer to Intellipse hereunder shall not be considered salary for pension or wage tax purposes and neither Intellipse nor its personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Customer, unless otherwise required by law.

13. CONTACTING US

All notices to be provided by Intellipse to Customer under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Customer on any Order Form or (ii) by electronic mail to the electronic mail address provided for Customer’s account owner.  If Customer needs to give notice to Intellipse, Customer must do so in writing by Courier or U.S. mail to 487 Ortega Av No. 3, Mountain View, CA 94040, Attn: General Counsel.  All notices shall be deemed to have been given immediately upon delivery if by electronic mail, or, if otherwise delivered, then upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.  If Customer has any questions or concerns about the Services or this Agreement, Customer may contact us by email at  legal@intellipse.com .