Intac International LLC User Agreement
THIS CONSTITUTES A LEGAL AGREEMENT BETWEEN [YOU, THE ENTITY DESCRIBED ON THE APPLICABLE ORDER FORM] (the “Customer”) AND INTAC INTERNATIONAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY WITH AN ADDRESS AT 15 COMMONWEALTH AVE, SUITE 201, WOBURN, MASSACHUSETTS 01801 (“Intac”) WITH RESPECT TO THE TERMS AND CONDITIONS HEREOF. READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK THE “[I ACCEPT]” BUTTON. BY CLICKING ON THE “I AGREE” BUTTON, OR OTHERWISE BY ACCESSING OR USING ANY SERVICES OFFERED ON THIS WEBSITE, INCLUDING ANY FREE TRIAL, YOU ACKNOWLEDGE THAT (1) YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT FOR AND ON BEHALF OF YOUR COMPANY, AND ARE DOING SO, AND (2) YOU HAVE READ, UNDERSTAND AND AGREE THAT USER SHALL BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “I DECLINE” BUTTON AND ACCESS WILL TERMINATE. IF YOU ARE NOT AUTHORIZED TO ENTER INTO AND BIND YOUR INSTITUTION TO THIS AGREEMENT, YOU MUST CLICK ON THE “I DECLINE” BUTTON.
This Agreement (“Agreement”) is made and entered into and effective as of the date it is accepted by Intac as signified by the confirmed Order Form (as defined below) sent to you by Intac (“Effective Date”).
WHEREAS, the Customer wishes to have access to, and Intac wishes to provide to the Customer, subject to the terms and conditions of this Agreement, certain software services described in the applicable Order Form (as defined below);
NOW, THEREFORE, in consideration of the mutual promises set forth herein and other valuable consideration, Intac and the Customer, intending to be legally bound, agree as follows:
TERMS AND CONDITIONS
When used in this Agreement, the following capitalized terms shall have the meanings ascribed to them in this Section:
- “Application Services” means the web-based, on-line, hosted software listed on an Order Form (as defined below), including, without limitation, all corrections, updates, modifications, releases, versions and enhancements to such software that may hereafter be generally released by Intac, but excluding Data.
- “Authorized Users” means the individuals who are authorized by the Customer to use and access the Application Services, for whom subscriptions to the Application Service have been purchased, and who have been supplied user identifications and passwords by the Customer (or by Intac) at the Customer’s request. Authorized Users may include, but are not limited to, employees, consultants, contractors of the Customer, companies under common control (direct or indirect ownership or control of more than 50% of voting interests) with the Customer or third-parties with whom the Customer transacts business.
- “Data” means the third-party data made available to the Customer with the Application Services as may be specified in one or more Order Forms or the Documentation.
- “Documentation” means Intac’s then-current guides and manuals made generally available by Intac for the Application Services.
- “Malicious Code” means any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs.
- “Order Form” means the ordering document for the Customer’s purchases from Intac, accepted in writing by a duly authorized representative of Intac, the terms, conditions and specifications of which are incorporated in this Agreement as if fully set forth herein.
- “Start Date” means the date on which the Application Service specified in a confirmed Order Form is first made available to the Customer.
- “Subscription Term” means the period of time that the Customer may use and access the Application Service beginning on the Start Date set forth in the applicable confirmed Order Form.
- “Customer Content” means all electronic data or information submitted by the Customer to the Application Services.
- Access. Subject to the terms and conditions of this Agreement, the Customer may access and use the Application Services, Data and Documentation identified on an Order Form, during the Subscription Term, on a remote basis via the internet.
- Restrictions. The Application Services and Data are not to be used by any direct competitor of Intac, except with Intac’s prior written consent. The Customer may use the Application Services and Data solely for its own internal business purposes, in compliance with applicable law. The Customer shall not:
- Cause or permit any unrelated third party to use or access the Application Services or Data except as expressly permitted herein or in an Order Form;
- License, sublicense, sell, resell, rent, lease, transfer or distribute all or any portion of the Application Services or Data;
- Copy, frame or mirror any content forming part of the Application Service or Data, other than for the Customer’s internal business purposes;
- Access or use the Application Services or Data in order to build a competitive product or service, or to copy, evaluate or monitor ideas, features, functions or graphics, or to monitor or evaluate the availability, performance, or functionality of the Application Services, or for any other benchmarking or competitive purposes.
- Reserved Rights. Intac reserves all rights in and to the Application Services not expressly granted in this Agreement. Nothing in this Agreement shall limit in any way Intac’s right to develop, use, license, create derivative works of, or otherwise exploit the Application Services or to permit third parties to do so.
Use of Services
- Intac Responsibilities. Intac shall provide commercially reasonable access to the Application Services, subject to reasonable downtime for scheduled or unscheduled maintenance. Intac will provide the Customer with prior written notice within a reasonable time before scheduled downtime. Intac will routinely backup all Customer Content and use industry-standard security measures to maintain the Customer’s login information (Customer IDs and passwords) in confidence.
- The Customer shall not use the Application Services to store or transmit any infringing, libelous, unlawful or tortious material; store or transmit material in violation of third-party privacy rights; use the Application Services to store or transmit Malicious Code; interfere with or disrupt the integrity or performance of the Application Services, Data or third-party data contained in it; attempt to gain or permit others to gain unauthorized access to the Application Services or related systems; or unreasonably restrict or inhibit any other Intac customer from using or enjoying any services provided to that customer by Intac. The Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Application Services or Data, and shall notify Intac promptly upon becoming aware of any unauthorized access or use. The Customer shall be solely responsible, at its own cost, to acquire and maintain all equipment, hardware, software, electrical power, network and internet access and connectivity required to access and use the Application Service.
- Payment Unless otherwise expressly stated on the Order Form, the Customer agrees to pay for all Application Services in advance by automatic deduction of the applicable subscription fees from the Customer’s credit card registered with Intac, or another accepted payment method such as ACH withdrawals. In the event that Intac expressly extends credit terms to the Customer, all invoices shall be due and payable when received, and all fees are non-refundable. Any payment not received from the Customer by the due date may be subject (at Intac’s discretion) to late charges at the rate of one and one-half percent (1.5%) per month or, if less, the maximum rate allowed by applicable law.
- Suspension of Services. If the Customer fails to pay any amount due hereunder within fourteen (14) days of the date due, Intac may, without limiting its other rights and remedies, suspend the Customer’s Application Services and access to Data until such amounts are paid in full.
Intellectual Property Rights
- General All right, title and interest in and to the Application Services, Intac’s Confidential Information (as defined below), Data and Documentation, including, without limitation, all modifications, enhancements and intellectual property rights thereto shall belong solely to Intac and/or its applicable suppliers.
- Ownership of Customer Content. All right, title and interest in and to Customer Content and Customer Confidential Information shall belong solely to the Customer. Upon termination or expiration of this Agreement or any applicable Order Form, Intac shall destroy or permanently delete all Customer Content, provided that the Customer makes a written request therefor within thirty (30) days of such termination or expiration, and further provided that such request is legally permissible. Intac shall have no further obligation to maintain or provide access to Customer Content after such 30 days.
- Aggregated Data and References Notwithstanding the foregoing, Intac shall have a perpetual, fully transferable, sublicensable, irrevocable, fully paid-up, royalty free, worldwide right and license to collect, aggregate and use Customer Content in aggregated and/or statistical form, provided that it is de-indentified consistent with applicable privacy laws (“Aggregate Data”). Intac shall have the right, but not the obligation, to use Aggregate Data to improve or otherwise modify its or its suppliers’ products and services or to create new products and services. To the extent that any Aggregate Data is so compiled or used by Intac, such Aggregate Data and any product or service improvements, modifications or inventions and any new products or services relating to or based on such Aggregate Data shall be solely owned by Intac and may be used by Intac for any lawful business purpose without any duty or obligation to the Customer. Further, Intac shall have the right to use the Customer’s name as a reference, including without limitation in its internet marketing communications.
- Ownership of Customer Feedback. Intac shall have a perpetual, fully transferable, sublicensable, irrevocable, fully paid-up, royalty free, worldwide right and license to use in any way or incorporate into the Application Services any suggestions, enhancement requests, recommendations or other feedback furnished by the Customer relating to the Application Services (collectively, “Customer Feedback”). Intac will not sell, publish or sell Customer Feedback in any way that could identify the Customer without Customer’s written consent.
- Definition of Confidential Information. “Confidential Information” means all information provided by the disclosing party (the “Discloser”) to the receiving party (the “Recipient”) that is proprietary and non-public related to the business activities of the Discloser, including, without limitation, the Discloser’s customer information, business plans, pricing, financial information, methods, processes, code, data or inventions and any other information that is designated as confidential by the Discloser. The Application Services and all related code shall be Confidential Information of Intac. Customer Content shall be Confidential Information of the Customer. Confidential Information does not include information that at the time of disclosure was generally known or available to the public, received by the Recipient from a third party, already in the Recipient’s possession or independently developed by the Recipient; provided in each case that such information was not obtained as a result of any breach of this Agreement, applicable law or any confidentiality obligation owed to the Discloser.
- Obligation of Confidentiality. The Recipient shall maintain the Discloser’s Confidential Information in confidence, using the same standard of care that it uses to protect its own Confidential Information of similar nature, but not less than a commercially reasonable standard of care. The Recipient shall not disclose the Discloser’s Confidential Information other than to those of its employees, agents and attorneys who have a need for it in order to perform the Recipient’s obligations hereunder, and provided that each of the same is bound by confidentiality obligations at least as restrictive as those set forth herein. Notwithstanding the foregoing, the Recipient may disclose Confidential Information as required by subpoena or other judicial or regulatory order, provided that the Recipient shall give the Discloser reasonable notice of the subpoena or order so as to give the Discloser an opportunity to oppose it.
Representations and Warranties.
Each party represents and warrants that it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; that it has all the requisite organizational authority to execute, deliver and perform its obligations under this Agreement; and that no approval, authorization or consent of any governmental or regulatory authority is required to be obtained for it to enter into and perform this Agreement.
Intac Limited Warranty of Application Service.
Intac further represents and warrants that the Application Service shall perform in substantial conformity to the Documentation in all material respects during the Subscription Term, when used in an appropriate operating environment in accordance with the Documentation and all the terms and conditions of this Agreement.
Damages and Limitation of Liability.
- INTAC’S AGGREGATE LIABILITY TO THE CUSTOMER WITH RESPECT TO CLAIMS RELATING TO THIS AGREEMENT OR THE APPLICATION SERVICES, WHETHER IN BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The limitations set forth in this Section shall apply to the fullest extent permitted by applicable law, and shall apply notwithstanding the failure of the essential purpose of any limited remedy.
- IN NO EVENT SHALL INTAC BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE APPLICATION SERVICES OR THE DATA, EVEN IF INTAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
To the fullest extent permitted by applicable law, the Customer shall defend, indemnify and hold Intac harmless from and against any claims, suits, proceedings, accidents, losses, liabilities, costs and expenses (including reasonable attorneys’ fees), injury or damage to any person or property (collectively, “Claims”) arising from or relating in any way to any acts or omissions by the Customer or to materials or information transmitted by the Customer in connection with the Application Service, regardless of the type of claim or the nature of the cause of action, including, without limitation, Claims relating to the following:
- The Customer’s professional services;
- The Customer’s violation of any federal, state or local law or regulation relating to privacy of information; or
- The Customer’s infringement of a third-party’s copyright, patent, trademark or other intellectual property right, whether by the Customer Content or by the Customer’s use of the Application Service in violation of this Agreement.
The foregoing indemnity shall not apply to the extent that a Claim is directly caused by Intac’s own gross negligence or willful misconduct. The Customer shall maintain liability insurance adequate to fund the foregoing indemnity obligation.
Access and Monitoring by Intac.
Intac may access the Customer’s account and Customer Content to identify or resolve technical problems, respond to complaints about the Application Services or monitor the Customer’s compliance with this Agreement. Without limiting the foregoing, Intac may, upon reasonable notice to the Customer, remove any material submitted to the Application Services that Intac finds to be in violation of the provisions of this Agreement.
Term and Termination
- Term of Agreement. This Agreement is effective on its Effective Date and continues until all Subscription Terms expire or are otherwise terminated.
- Subscription Term and Renewal. The Subscription Term shall be for the period of months or years set forth in the Order Form, and thereafter shall renew automatically for successive periods of the same duration, unless either party notifies the other party of its intent not to renew the Subscription Term at least ten (10) days prior to the end of the then-current Subscription Term.
- Termination. Intac may terminate this Agreement immediately upon written notice if any amount due hereunder remains unpaid for fourteen (14) days. Either party may terminate this Agreement for other breach upon fourteen (14) days’ prior written notice of such breach, provided that the breaching party has failed to cure its breach within that 14-day period. Either party may terminate this Agreement immediately upon written notice in the event that the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
- Effects of Termination. Termination of this Agreement shall immediately terminate all rights and licenses granted hereunder. All fees earned by Intac prior to the effective date of termination shall be due and payable immediately upon termination.
- No Third Party Beneficiaries. This Agreement is for the benefit of the parties hereto, and is not intended to confer any legal rights or benefits upon any third party.
- Headings. Headings in this Agreement are for convenience only, and have no substantive effect in the interpretation of this Agreement.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be void or unenforceable, the offending provision shall be reformed to reflect as closely as possible the original intent of the parties, and the remaining provisions of this Agreement shall remain in full force and effect. If such provision cannot be so reformed, it shall be deemed stricken, and the remaining provisions of this Agreement shall remain in full force and effect. It is expressly understood and agreed that each provision that provides for limitation of liability, disclaimer of warranty, indemnification or exclusion of damages or other remedies is intended to be enforced as such, even in the event that any provision of this Agreement is determined to have failed of its essential purpose.
- Independent Contractors. The parties are independent contractors. Nothing contained in this Agreement shall be construed to create a relationship of employment, partnership, joint venture or trust between the parties. Neither party shall have authority to act for, bind or otherwise create or assume any obligation on behalf of the other.
- Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, Intac may assign this Agreement to the acquirer of substantially all of its equity or assets. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
- Force Majeure. Except for the Customer’s obligation to pay Intac hereunder, a party’s delay or failure to perform its obligations under this Agreement shall be excused if and only to the extent that such delay or failure to perform is caused by occurrences beyond the party’s reasonable control, including, without limitation, act of God, strike or other labor disturbance, war (declared or undeclared), embargo or terrorism (collectively, “Force Majeure Event”). Any party experiencing such Force Majeure Event shall give the other party reasonable notice of the event and claim of Force Majeure.
- Government End Use Provisions. This Agreement is not intended for the provision of any products or services of any kind to any federal, state or local governmental agency, department or authority anywhere in the world (“Government”). Products and services intended for Government as the end-user shall be subject to a separate, signed agreement.
- Governing Law; Exclusive Jurisdiction of Disputes. All terms and conditions of this Agreement shall be governed by, construed and enforced exclusively in accordance with the substantive laws of the Commonwealth of Massachusetts, without giving effect to any conflict-of-laws rules. The federal and state courts located in the Commonwealth of Massachusetts shall have exclusive jurisdiction over any lawsuit arising out of or relating to the interpretation or enforcement of this Agreement, and the Customer expressly consents to such jurisdiction.
- Survival. The following provisions shall survive termination of this Agreement: Sections 1, 2.3, 4.1, 5, 6, 7, 9, 10, 12.4 and 13.
- Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) when given by e-mail or facsimile with confirmation of transmission; (c) one day after mailing postage-prepaid by commercial overnight courier services; or (d) three days after mailing, postage-prepaid, by U.S. certified mail, addressed to the party at its address given on the Order Form, or to such other address as the party has identified by notice given pursuant to this Section.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Specifically, but without limitation, there is no warranty against interference with the Customer’s enjoyment of the information or against infringement, no warranty that the functions performed by the Application Service will meet the Customer’s requirements, that the operation of the Application Service will be uninterrupted or error-free, that defects in the Application Service will be corrected or that the Application Service is compatible with any particular platform. Except as expressly stated in this Agreement, Intac is not required to provide any updates to the Application Services. Intac has no responsibility and assumes no liability with respect to the performance or failure to perform warranty services of any other manufacturer or software service provider. The foregoing limitation of warranty applies to the fullest extent permitted by applicable law.