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Terms of Service
THIS INTELLIMIZE SAAS SERVICES AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS FOR USE FOR THESERVICES AND IS BETWEEN INTELLIMIZE, INC. (“INTELLIMIZE”), A DELAWARE CORPORATION HAVING APLACE OF BUSINESS AT 548 MARKET STREET, PMB 99372, SAN FRANCISCO, CA 94104 AND THE PARTYAGREEING TO THE TERMS OF THIS AGREEMENT (“CUSTOMER”). BY SUBMITTING AND/OR EXECUTING ANORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING AN "ACCEPT" OR SIMILAR BUTTON, OROTHERWISE USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THISAGREEMENT. CUSTOMER MAY NOT USE THE SAAS SERVICES WITHOUT AGREEING TO THIS AGREEMENTFIRST. IF A WRITTEN AGREEMENT REGARDING CUSTOMER’S USE OF THE SERVICES EXISTS BETWEEN ANDHAS BEEN EXECUTED BY BOTH INTELLIMIZE AND CUSTOMER, THE TERMS OF THAT WRITTEN AGREEMENTSHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
Capitalized terms used in the Agreement and not otherwise defined will have the meanings set forth in the applicable Order Form.
1. RIGHTS AND RESTRICTIONS TO THE SERVICES
1.1 Services. Subject to Customer’s compliance with the Agreement, Intellimize grants Customer and its Authorized Users a non-exclusive, non-transferable right to access and use the Intellimize saas services listed under an Order Form (“Services”) for its internal business purposes during the Subscription Term.
1.2 Authorized Users. Customer may select individuals (Customer’s employees, independent contractors, and/or agents) 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, including but not limited to the security of each Authorized User’s credentials and will not share (and will ensure each Authorized User doesnot share) such credentials with any other person or entity or otherwise permit any other person or entity access or use the Services.
1.3 Restrictions. Customer and its Authorized Users shall only use the Services in accordance with applicable law and shall not: (i) sublicense, 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; (iv) takeor use any screen shots from the Services; (v) 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 and (vi) interfere with or disrupt the Services or attempt to gain access to any related systems or networks to which access is restricted.
2. CUSTOMER ADDITIONAL RESPONSIBILITIES
2.1 Enforcement. Customer will ensure that Authorized Users comply with the Agreement. Customer will promptly notify Intellimize of any suspected or alleged breach of the Agreement and will cooperate with Intellimize with respect to: (i) any investigation by Intellimize of any suspected or alleged breach of the Agreement; and (ii) any action by Intellimize to enforce the Agreement. 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 the Agreement.
2.2 Other Responsibilities. Customer agrees to: (i) maintain a privacy policy on its websites, applications, or other types of platforms or properties that complies with applicable laws (the “Customer Platforms”) and provide all required disclosures to the end users of its Customer Platforms; (ii) obtain all necessary rights, releases and consents to allow Customer Activity Data (as defined below) to be collected, used and disclosed in the manner contemplated by the Agreement and to grant Intellimize the rights herein; (iii) not submit to, collect or use any personally identifiable and/or sensitive data (as defined under applicable privacylaws) with the Services (including from Third Party Products (as defined below)), except where expressly permitted by the Agreement and otherwise elected by Customer using certain features in the Services; and (iv) comply with any third-party terms applicable to any Customer Platforms.
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 are a machine learning tool and hence will track and use certain data consistent with how machine learning tools work and as a result, the following data uses can’t be modified on an individual customer basis. More specifically, the Services will collect and use information about the web browsing activities of
individual end users on Customer’s mobile and desktop websites, data from the browsers of such end users, and other data that Customer chooses to provide to Intellimize through the Services. Intellimize will also obtain data from third party services that relates to and/or may enhance such end user interactions with Customer and will use the data in the provision of the Services (the “Third-Party Provider
Activity Data”). 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 Security. Intellimize agrees to maintain industry-standard 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, (b) using firewalls, access controls and similar security technology designed to protect Customer Activity Data from unauthorized disclosure, and (c) undergoing a SOC 2 Type II Audit (or similar audit standard).
4. FEES
4.1 Fees and Payment Terms. By placing an ordering document (online or paper-based) that is accepted by Intellimize (“Order Form”) for the 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) in advance. Each Subscription Term will automatically renew for additional one year terms at the then-current fees ("Renewal Subscription Term"), unless either party gives notice to the other party at least thirty (30) days prior to the end of the Subscription Term or then-current Renewal Subscription Term. All amounts not paid when due under the Agreement will accrue interest daily at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower.
4.2 Taxes. All amounts payable under the Agreement 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 the Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Intellimize’s net income.
5. OWNERSHIP
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 and (ii) any ideas, know-how, inventions, methods or techniques developed or conceived by Intellimize as a result of providing the Services under the Agreement, including all patent rights (including, without limitation, patent applicationsand disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights(“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.
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” means all confidential and proprietary information of a party disclosed to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The terms and conditions stated in the Agreement 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 Intellimizein providing the Services. Notwithstanding the foregoing, Customer may not disclose the existence or contents of the Agreement, 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 Use and Nondisclosure. During the Term and for a period of three (3) years thereafter, each party will not use the other party’s Confidential Information for any purpose other than for the performance and enforcement of the Agreement 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 the Agreement; 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 the Agreement. 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.
6.3. Exclusions. The obligations and restrictions in Sections 6.1 and 6.2 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of the Agreement 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.
6.4 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 the Agreement: (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 other professional 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. WARRANTIES AND DISCLAIMERS
7.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all applicable laws in its performance hereunder. Intellimize warrantsthat the Services will substantially conform in all material respects in accordance with the Intellimize’s specifications for the Services. Customer will provide prompt written notice of any non-conformity. As Customer’s sole and exclusive remedy and Intellimize’s entire liability for any breach of the foregoing warranty, Intellimize will confirm and then fix, provide a work around, or otherwise repair or replace the nonconforming portion of the Services, or, if Intellimize is unable to do so, terminate the right to use the Services and return the Services fees paid to Intellimize for the period beginning with Customer’s notice of nonconformity through the remainder of the then-current term of the applicable Order Form.
7.2 EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 7, INTELLIMIZE DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT AND THE SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
8. INDEMNIFICATION
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 the Agreement, infringe any U.S. copyright or patent or misappropriate any trade secret (“Claim”) 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 the 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. Intellimize may, at its sole option and expense: (i) procure for Customer the right to continue using the Services under the terms of this Agreement; (ii) replace or modify the Services to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the right to use the infringing Services and refund Customer the prepaid fees for the remainder of then-current Subscription Term as measured from the date of termination. Intellimize shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Services in combination with any other product, service or device not furnished or recommended or approved by Intellimize in writing, if such Claim would have been avoided by the use of the Services, without such product, service or device; or (ii) Customer’s use of the Services in breach of this Agreement where the breach led to the Claim. The provisions of this Section 8.1 set forth Intellimize’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
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, incurred by 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 control of the defense and settlement of the claim; and (iii) conducts and provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the investigation, 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.
9. LIMITATION OF LIABILITY
9.1 Exclusion of Damages. 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 BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Total Liability. IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THE EXCEED THE TOTAL FEES PAID BY CUSTOMER TO INTELLIMIZE IN THE TWELEVE MONTH PERIOD PRIOR TO WHEN THE CLAIM AROSE.
10. TERM AND TERMINATION
10.1 Term. The Agreement will commence on the 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 forso long as any Order Form(s) remains in effect, unless terminated earlier as provided in the Agreement (the “Term”). The term of any Order Form will for the Subscription Term (as defined in Section 4.1).
10.2 Termination for Cause. Either party may terminate the Agreement upon written notice if the other party breaches any material term of the Agreement 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 the Agreement: (i) Customer’s and its Authorized Users’ right to access and use the Services and any Customer Activity Data will immediately terminate and Customer and its Authorized Users will immediately cease all use of the Services; and (ii) 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 3.2, 5, 6, 7.2, 8, 9, 10.3, 10.4 and 11 will survive any expiration or termination of the Agreement.
11. GENERAL
11.1 Assignment. Neither party may assign or transfer the Agreement, in whole or in part, without the other party’s written consent except in the event of a merger, acquisition, or sale of substantially all of a party’s assets. Subject to the foregoing restrictions, the Agreement will inure to the benefit of the successors and permitted assigns of the parties. For clarity, Intellimize may use subcontractors in the ordinary course of its business.
11.2 Governing Law. The Agreement and all matters arising out of or relating to the Agreement 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 the Agreement 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; Severability. The waiver by either party of any default or breach of the Agreement will not constitute a waiver of any other or subsequent default or breach. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.
11.5 Notices. All notices required or permitted under the Agreement will be in writing (including by electronic mail), will reference the Agreement, 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 the Agreement 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. The parties acknowledge and agree that each has had adequate opportunity to be represented by legal counsel of its choice throughout the negotiation and drafting of the agreement.
11.8 Name. Intellimize may reference Customer in Intellimize’s customer lists on Intellimize’s website and in its other materials.
11.9. 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.
11.10 Entire Agreement; Precedence. The Agreement, 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 the agreement. In the event of any conflict between the Agreement and an Order Form, the following order of priority will govern the interpretation of such documents: 1) the applicable Order Form and 2) the Agreement.
11.11 Non-Exclusive Remedies. Except as expressly set forth in the Agreement, the exercise by either party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.
11.12 Counterparts. The Agreement may be executed in counterparts, each of will constitute an original, and all of which will constitute one and the same instrument.