These Intellimize Terms of Service (“Terms”) govern your use of the Services (defined below) offered by Intellimize, Inc. (“Intellimize”).
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (A) IDENTIFIED ON AN ORDER FORM WHICH REFERENCES THESE TERMS OR (B) WHO IS USING THE SERVICES ON A TRIAL BASIS (“CUSTOMER”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CUSTOMER TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” WILL REFER TO SUCH CUSTOMER. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT USE THE SERVICES.
These Terms were last updated on October 14, 2016. They are effective as of the date of your acceptance of these Terms. Capitalized terms used in these Terms and not otherwise defined will have the meanings set forth in the applicable Order Form.
Intellimize may modify these Terms at any time, in its sole discretion. If Intellimize does so, it will let you know by posting the modified Terms in the Intellimize Services and by emailing a notification to the designated person at your company. Updates to these Terms will not take effect until 15 days after the date of posting and emailing. It’s important that you review the Terms whenever Intellimize modifies them because if you continue to use the Services more than 15 days thereafter, you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you cannot use the Services anymore and you should notify Intellimize in a receipt-acknowledged writing within 15 days of Intellimize’s email to you. If you stop using the service because of a change in these Terms, you will receive a prorated refund of unused prepaid Fees you have already paid. Lack of receipt-acknowledged notification within 15 days will constitute acceptance of the change in these Terms. Customer is responsible for keeping Intellimize up to date about the designated contact person by emailing firstname.lastname@example.org.
1.1 Services. Subject to Customer’s compliance with these Terms (including the payment of the Fees specified in the applicable Order Form), Intellimize will provide Customer with access to Intellimize’s proprietary software as a service solution that optimizes and personalizes visitor website experiences with the goal of improving conversion rates (the “Services”) in accordance with these Terms. Customer and Authorized Users (as defined below) may access and use the Services solely for Customer’s internal business purposes. Because the Services are evolving over time, Intellimize may change the Services at any time at its sole discretion. Intellimize will notify Customer in writing if the change is material, and Intellimize will use reasonable commercial efforts to determine materiality. If Intellimize discontinues the Services entirely without replacing the Services with an alternative that is reasonably considered to be substantially similar or better, Intellimize will provide a prorated refund of unused prepaid fees and notify Customer at least 30 days before discontinuation takes effect.
1.2 Authorized Users. Customer may select individuals (Customer’s employees or independent contractors) to access and use the Services and Customer will obtain separate credentials, e.g., user IDs and passwords, from Intellimize for such individuals (each, an “Authorized User”). Customer will at all times be responsible for all actions taken under an Authorized User’s account. Customer is responsible for the security of each Authorized User’s credentials and will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity or otherwise permit any other person or entity access or use the Services. Customer is also responsible for providing accurate, complete and up-to-date account information for itself and its Authorized Users to enable Intellimize to send notices, statements and other information by email or through Customer and its Authorized Users’ accounts.
1.3 Restrictions. Customer and its Authorized Users will not: (i) sell, resell, rent or lease the Services; (ii) attempt to modify or reverse engineer the Services; (iii) use the Services to store any data or information that is unlawful; or (iv) take or use any screen shots from the Services. Customer may not access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes. Customer will not interfere with or disrupt the Services or attempt to gain access to any related systems or networks to which access is restricted.
2. CUSTOMER RESPONSIBILITIES
2.1 Cooperation and Assistance. In order for the Services to be effective, Customer will provide Intellimize with Customer’s good faith cooperation and assistance and make available such information and personnel as may be reasonably required by Intellimize. Customer agrees that its cooperation and assistance will include active engagement by Customer in ideation about, and generation of variations for, the user experience enjoyed by its website visitors (aka alternative user experiences), to show its website visitors and that such cooperation and assistance from Customer is a requirement for Customer’s access to and use of the Services.
2.2 Marketing Support. Intellimize may only use Customer name, trademarks, and logos (collectively, the “Customer Marks”) once customer has given written consent to enable such use, and such consent will not be unreasonably withheld. If Intellimize has not received such consent from Customer within 90 days from the start date set forth in the Order Form, Intellimize will have the right to terminate these Terms and any Order Form. When consent is granted, Customer grants to Intellimize a non-exclusive, non-transferable (except as permitted under Section 11.1), limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of written and electronic marketing materials, on the Intellimize website(s) and in discussions or written communications with third parties about the Services, including analysts or the press, provided that such use is solely limited to the purpose of identifying Customer as a customer of Intellimize. All goodwill developed from such use will be solely for the benefit of Customer. Customer may only use Intellimize’s name, trademarks and logos (collectively, the “Intellimize Marks”) once Intellimize has given written consent to enable such use, and such consent will not be unreasonably withheld. When consent is granted, Intellimize grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.1), limited right to use the Intellimize name, trademarks, and logos (collectively, the “Intellimize Marks”) in the production of written and electronic marketing materials, on the Customer website(s) and in discussions or written communications with third parties about the Services, including analysts or the press, provided that such use is solely limited to the purpose of identifying Customer as a customer of Intellimize. All goodwill developed from any such use will be solely for the benefit of Intellimize.
2.3 Enforcement. Customer will ensure that Authorized Users comply with these Terms. Customer will promptly notify Intellimize of any suspected or alleged breach of these Terms and will cooperate with Intellimize with respect to: (i) any investigation by Intellimize of any suspected or alleged breach of these Terms; and (ii) any action by Intellimize to enforce these Terms. Intellimize may suspend or terminate Customer’s or any Authorized User’s access to the Services upon notice to Customer in the event that Intellimize reasonably determines that Customer or any Authorized User breached these Terms.
2.4 Customer Representative. Upon the execution of the Order Form, Customer will designate an individual to serve as its primary representative and contact for facilitating communications between Customer and Intellimize regarding the Services (the “Customer Representative”). The Customer Representative will have the responsibility and authority to make decisions, approve plans and grant requests on Customer’s behalf. Customer acknowledges and agrees that Intellimize will be entitled to rely on all communications from and decisions of the Customer Representative. Customer may change its Customer Representative at any time by providing Intellimize with at least five (5) days’ advance notice.
3. CUSTOMER AND THIRD-PARTY PROVIDER ACTIVITY DATA; ANONYMOUS DATA
3.1 Customer and Third-Party Provider Activity Data. Customer understands and agrees that the Services will track data and information about the interactions and activity of individual end users with Customer’s digital presence, including desktop websites, paid media, mobile applications and the like, in addition to data from the browsers of such end users. The Services will also track contextual data and information about such end user interactions and activity which Intellimize receives from third party services to which Intellimize provides data about the end users (the “Third-Party Provider Activity Data”). In addition, the Services will track contextual data and information about such end user interactions and activity that is provided by Customer to Intellimize. All of the data and information described in this Section 3.1, including the Third-Party Provider Activity Data, is referred to as “Customer Activity Data”.
3.2 Anonymous Data. Customer agrees that Intellimize will have the right to generate (i) data by aggregating Customer Activity Data with other data so that results are non-personally identifiable with respect to Customer or its end users and (ii) capture anonymous learnings, logs and data regarding use of the Services by Customer and its Authorized Users (collectively, the “Anonymous Data”). Except as set forth herein, the parties agree that Intellimize owns all rights, title and interests in and to the Anonymous Data, and that Intellimize may use such Anonymous Data for any business purpose during or after the Term (as defined below), including without limitation to develop and improve the Services and to create and distribute reports and other materials. Intellimize will not distribute Anonymous Data in a manner that personally identifies Customer or its end users.
3.3 Reports. Intellimize will, regularly during the Term, provide reports to Customer describing the performance of the Services for Customer.
3.4 Security. Intellimize agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. These measures will include: (a) storing Customer Activity Data on servers located in a physically secured location and (b) using firewalls, access controls and similar security technology designed to protect Customer Activity Data from unauthorized disclosure. Intellimize takes no responsibility and assumes no liability for any Customer Activity Data other than its express security obligations in this Section.
4. FINANCIAL TERMS
4.1 Fees. By placing an Order Form for purchase of the Services, Customer agrees to pay Intellimize the fees specified in the Order Form (“Fees”). Unless otherwise stated in the Order Form, Customer will pay Intellimize Fees for the entire Subscription Term (as defined in the Order Form). Customer cannot cancel or terminate a Subscription Term except pursuant to (i) Section 10.2 (Termination for Cause) of these Terms or (ii) otherwise specified in an Order Form. Each Subscription Term will renew as specified in the Order Form.
4.2 Payment Terms. Customer will pay Intellimize the Fees pursuant to the schedule and payment terms specified in the Order Form.
4.3 Taxes. All amounts payable under these Terms are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes and duties assessed in connection with these Terms and its performance by any authority within or outside of the U.S., except for taxes payable on Intellimize’s net income.
4.4 Interest. All amounts not paid when due under these Terms will accrue interest daily (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full.
4.5 Third party tools. Notwithstanding the foregoing, Customer understands and agrees that Customer is solely responsible for any costs incurred by Customer with respect to Customer’s use of any third party services in connection with Customer’s access to and use of the Services.
5.1 Intellimize Proprietary Rights. As between Intellimize and Customer, Intellimize exclusively owns all rights, title and interests in and to the Services and the Third-Party Provider Activity Data, including (i) any improvements, enhancements and additional functionalities made by or for Intellimize as a result of exercising the rights granted to the Customer Activity Data described in Section 5.2 and (ii) any ideas, know-how, inventions, methods or techniques developed or conceived by Intellimize as a result of providing the Services under these Terms, including all patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world (“Intellectual Property Rights”) therein. Intellimize grants Customer, for the Term, a non-exclusive, non-sublicensable, royalty-free, and revocable license to store, use and access the Third-Party Provider Activity Data for Customer’s internal business purposes only.
5.2 Customer Proprietary Rights. As between Intellimize and Customer, Customer owns all rights, title and interests, including all Intellectual Property Rights, in and to the Customer Activity Data, but excluding the Third-Party Provider Activity Data. Customer grants Intellimize, its employees and its service providers a non-exclusive, royalty-free, perpetual and irrevocable license to store, use, modify, copy, distribute copies of and make derivative works based upon the Customer Activity Data, in connection with (i) provision of the Services for the benefit of Customer and its Authorized Users and (ii) making improvements and adding functionalities to the Services.
5.3 Feedback. Customer and its Authorized Users acknowledge that any comments, ideas, suggestions and other feedback regarding the Services that Customer and its Authorized Users provide to or share with Intellimize in any format (the “Feedback”), will be the sole and exclusive property of Intellimize. Customer and its Authorized Users hereby irrevocably transfer and assign to Intellimize and agree to irrevocably assign and transfer to Intellimize all of Customer’s and its Authorized Users’ rights, title, and interests in and to all Feedback, including all Intellectual Property Rights therein.
6.1 Definition. “Confidential Information” means: (i) information that is disclosed in written form and that is clearly labeled as proprietary, confidential or with words of similar meaning; (ii) information that is disclosed orally or visually and that is identified as proprietary or confidential at the time of its disclosure and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (iii) any information that due to its nature or the circumstances of disclosure would reasonably be deemed confidential. The terms and conditions stated in these Terms will be deemed the Confidential Information of both parties. Without limitation of the foregoing, Customer’s Confidential Information shall include the Customer Activity Data and Intellimize’s Confidential Information shall include the Third-Party Provider Activity Data and all of the software, technology, testing, trade secrets, and analytics employed by Intellimize in providing the Services. Notwithstanding the foregoing, Customer may not disclose the existence or contents of these Terms, the existence, content, or substance of Customer’s Order Form, or results of work between the parties without the prior written consent of Intellimize.
6.2 Exclusions. The obligations and restrictions in Section 6.4 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of these Terms by the receiving party; (ii) is rightfully known by the receiving party prior to the disclosure of such information from the disclosing party; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
6.3 Use and Nondisclosure. During the Term and for a period of four (4) years thereafter, each party will not use the other party’s Confidential Information for any purpose other than for the performance and enforcement of these Terms and will not disclose the other party’s Confidential Information to any party other than to those of its employees and contractors who need to know such Confidential Information for a party’s performance and enforcement of these Terms; provided that each such employee and contractor is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in these Terms. Each party will use the same efforts to protect the confidentiality of the other party’s Confidential Information that it ordinarily uses to protect the confidentiality of its own confidential information of like importance, but in no event less than reasonable efforts. Notwithstanding the foregoing, Intellimize’s exercise of its rights to the Customer Activity Data as described in Section 5.2 will not be a breach of its obligations under this Section 6.
6.4 Permitted Disclosure. The foregoing provisions of this Section 6 will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of these Terms: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that, to the extent permitted by applicable law, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
7. WARRANTY DISCLAIMERS
INTELLIMIZE DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS AND THE SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. INTELLIMIZE DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
8.1 By Intellimize. Intellimize will defend Customer against any action or suit brought against Customer by a third party to the extent that it is based upon a claim that the Services, as provided by Intellimize to Customer pursuant to these Terms, infringe any U.S. copyright or misappropriate any trade secret and will indemnify and hold Customer harmless from and against any damages costs, and expenses (including reasonable attorneys’ fees) awarded against Customer or payable in settlement with respect to such claim; provided that Customer: (a) promptly notifies Intellimize in writing of the claim; (b) grants Intellimize sole control of the defense and settlement of the claim; and (c) provides Intellimize, at Intellimize’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Customer reserves the right to retain counsel, at Customer’s sole expense, to participate in the defense of any such claim. Intellimize may not enter into any settlement that would impose any obligations or liability upon Customer without Customer’s prior written consent.
8.2 By Customer. Customer will defend Intellimize against any action or suit brought against Intellimize by a third party in connection with Customer’s use of the Services, and will indemnify and hold Intellimize harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) awarded against Intellimize or payable in settlement with respect to such claim; provided that Intellimize: (i) promptly notifies Customer in writing of the claim; (ii) grants Customer sole control of the defense and settlement of the claim; and (iii) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Intellimize reserves the right to retain counsel, at Intellimize’s sole expense, to participate in the defense of any such claim. Customer may not enter into any settlement that would impose any obligations or liability upon Intellimize or that would limit or adversely affect Intellimize’s rights in and to the Services without Intellimize’s prior written consent.
9. LIMITATION OF LIABILITY
9.1 Exclusion of Damages. EXCEPT FOR LIABILITY RESULTING FROM A BREACH OF SECTION 6 AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
9.2 Total Liability. IN NO EVENT WILL INTELLIMIZE’S TOTAL LIABILITY TO CUSTOMER IN CONNECTION WITH THESE TERMS OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER TO INTELLIMIZE IN THE SIX-MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY.
10. TERM AND TERMINATION
10.1 Term. These Terms will commence on the start date set forth in the Order Form or, if unspecified, shall be deemed to start on the date of execution and delivery of the Order Form by both parties, and will continue for so long as any Order Form(s) remains in effect, and the term of any Order Form will begin on the start date and end on the expiration date specified therein (the “Term”), unless terminated earlier as provided in these Terms.
10.2 Termination for Cause. Either party may terminate these Terms upon written notice if the other party breaches any material term of these Terms and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party.
10.3 Effect of Termination. Upon any expiration or termination of these Terms: (i) Customer’s and its Authorized Users’ right to access and use the Services will immediately terminate and Customer and its Authorized Users will immediately cease all use of the Services; (ii) Customer’s and its Authorized Users’ right to access any Customer Activity Data in the Services will cease and Intellimize may delete such Customer Activity Data at any time; and (iii) the receiving party will destroy all copies of the disclosing party’s Confidential Information.
10.4 Survival. The rights and obligations of the parties under Sections 5, 6, 7, 8, 9, 10.3, 10.4 and 11 will survive any expiration or termination of these Terms.
11.1 Assignment. Neither party may assign or transfer these Terms, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer without such consent will be void. “Change of Control” means, with respect to a party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such party with another entity. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties. For avoidance of doubt, the sale or transfer of stock through an initial public offering or a private placement or offering of securities shall not be considered a Change of Control or assignment for purposes of this Agreement.
11.2 Governing Law. These Terms and all matters arising out of or relating to these Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Any legal action or proceeding relating to these Terms will be brought exclusively in the state or federal courts located in the Northern District of California. Intellimize and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.3 Waiver. The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach.
11.4 Severability. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.
11.5 Notices. All notices required or permitted under these Terms will be in writing (including by electronic mail), will reference these Terms, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
11.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.7 Relationship Between the Parties. Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
11.8 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to causes beyond its reasonable control including without limitation acts of God, war, terrorism, governmental action, labor conditions, riot, acts of civil or military authorities, fire, floods, earthquakes, accidents and denial-of-service attacks (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will promptly notify the other party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.9 Entire Agreement. These Terms, together with the Order Form, constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms.
11.10 Order Forms; Precedence. Each Order Form is governed by these Terms. In the event of any conflict between these Terms and an Order Form, the following order of priority will govern the interpretation of such documents: 1) the applicable Order Form and 2) these Terms.
11.11 Non-Exclusive Remedies. Except as expressly set forth in these Terms, the exercise by either party of any remedy under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
11.12 Construction of Agreement. The parties acknowledge and agree that each has been represented by legal counsel of its choice throughout the negotiation and drafting of these Terms, that each has participated in the drafting thereof, and that these Terms will not be construed in favor of or against either party solely on the basis of a party’s drafting or participation in the drafting of any portion of these Terms.
11.13 Counterparts. These Terms may be executed in counterparts, each of will constitute an original, and all of which will constitute one and the same instrument.