SaaS Master License Agreement

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MASTER SUBSCRIPTION LICENSE AGREEMENT

Definitions

  1. Definitions
  2. Grant of License; Support
  3. Software and Documentation
  4. Fees
  5. Warranties
  6. Indemnification
  7. Limitation of Liability
  8. Confidentiality
  9. Publicity
  10. Term; Termination
  11. Assignment
  12. Client’s Responsibilities
  13. Client Data

  1. Schedule 1
  2. Schedule 2

  1. Definition of Incident Categories
  2. Service Level Response Times
  3. Service Level Procedures
  4. Accessing the Intelledox Support Portal

  1. Definitions

    As used in this Agreement, the following terms have the meanings set forth below:

    Acceptable Use Policy
    means Intelledox’s acceptable use policy for the Services set out in Exhibit 1, hereto.
    Affiliate
    Means an entity that Controls, is Controlled by or is under common Control with a party.
    Control
    Means the ownership of more than fifty percent (50%) of an entity’s stock or other voting interest.
    Documentation
    Means the means the current technical and user documentation for the Services located on the Infiniti Knowledgebase.
    Environments
    Means the type of computer environment the Services are authorized to be used, such as Production Environment, and Test Environment, as set out in the Order.
    Hosting Environment
    Means the hosting of the Services by Intelledox, as set out in this Agreement to permit Client to access the Services remotely.
    License Term
    Means the term of the license to the Services set out in an Order.
    Malicious Code
    Means code, files, scripts, agents or programs intended to interfere with the Services or the Environments, including, for example, viruses, worms, time bombs and Trojan horses.
    Order
    Means an ordering document entered into by Client and Intelledox specifying the Services.
    Service Level Agreement or SLA
    Means Intelledox service level uptime for the Services set out in Exhibit 2.
    Service Provider
    Means the use of the Services to perform services for entities other than Client.
    Services
    Means the Software and related services set out in an Order that are hosted by or on behalf of Intelledox in the applicable Environment and made available to Client through the Hosting Service.
    Subscriptions
    Means the entitlements of the Services that are purchased by Client as set out in an Order.
    Support
    Means the technical support for the Services provided by Intelledox as set out in Exhibit 3.
    Transaction
    shall mean an instance where the user executes the submit function within the Infiniti Platform.
    User
    Means an individual who is authorized by Client to use the Services.
  2. Grant of License; Support

    1. Services

      Intelledox hereby grants Client a non-exclusive, non-transferable license to use the Services during the License Term in accordance with this Agreement and subject to the limitations set out in an Order. The grant of rights hereunder to the Services is not a sale of the Services. Intelledox and its third party providers reserve all rights not expressly granted by this Agreement.

    2. Support

      Unless otherwise identified in the Order, Intelledox shall provide Client with Silver Level Support for the Services. Client may upgrade support in 12-month terms for the fees set out in the Order. The Support shall be provided in accordance with this Agreement and Exhibit 3.

  3. Hosting Services

    1. General

      1. Intelledox shall provide Client with Hosting Services during the License Term in each of the Environments. Intelledox shall have primary administrative rights and controls for the Services.
    2. Enhancements

      1. Intelledox will host the current commercially available release of the Software that Client is licensed to use. Client must be current on Subscription Fees to use the Hosting Services. Unless otherwise agreed to by the parties in a statement of work, Intelledox shall not provide any customization to the Services or integrate the Services, including any Enhancements, to Client’s environment.
    3. Availability; Compliance

      1.  Intelledox shall use commercially reasonable efforts to make the Services available in accordance with the SLA. The data centers providing the Services shall be PCI, HITRUST, SSAE 16, ISO 27001 certified and Intelledox shall use commercially reasonable efforts to obtain and maintain comparable and/or successor certifications during the License Term.
    4. Protection of Client Data

      1. Intelledox shall maintain reasonable administrative, physical, and technical safeguards for protection of Client Data, subject to Client’s obligations set out in this Agreement. Safeguards may include reasonable measures to prevent access, use, modification or disclosure of Client Data by Intelledox personnel, except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with this Agreement, or (c) as expressly permit in writing by Client.
  4. Use of Services; Client Obligations

    1. Subscriptions

      Client shall purchase the Subscriptions set out in the Order. Subscriptions may be added during the License Term for the fees set out in an Order. Any added subscriptions will terminate on the same date as the underlying subscriptions.

    2. Usage Limitations

      Services are subject to the limitation set out in an Order, such as Transaction and Users. The Service shall not be accessed by more than the quantity specified in an Order. If Client exceeds the limitations set out in an Order, Client shall, unless otherwise agreed to by the parties, execute an amendment to the Order for the required additional quantities and shall pay Intelledox the applicable additional fees in accordance with this Agreement and the Order. Client shall establish a unique user credentials and password for each User in accordance with the requirements of the Services and the User credentials and password shall not be shared with any other individual; provided, however, a User identification may be reassigned to an individual replacing a User who will no longer use the Service.

    3. Client Data

      Client shall be responsible for Client Data, including, without limitation, ensuring that Client Data submitted to the Services is encrypted and for the accuracy and quality of the Client Data. Intelledox shall not be liable for any lost Client Data or any expense or damage suffered by Client arising from or in connection with Client Data. Client grants Intelledox a non-exclusive, non-transferable limited license to host, copy, transmit and display Client Data and any non-Intelledox applications utilized by Client with the Client Data, as reasonably necessary for Intelledox to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Intelledox acquires no right, title or interest from Client under this Agreement in or to any Client Data or non-Intelledox applications licensed or owned by Client.

    4. General

      Client shall comply with the Acceptable Use Policy and shall use the Services in accordance with the Order and this Agreement. The Services shall only be used by and for the benefit of Client and Client shall not use the Services as a Service Provider. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of Services and shall promptly notify Intelledox of any unauthorized access or use that it becomes aware of. Client’s use of the Services shall comply with all applicable laws and government regulations and the terms of service of any non-Intelledox applications used with the Services. Client shall provide Intelledox with any reasonable assistance required by Intelledox to provide the Services.

    5. Additional Restrictions

      Client shall, in addition to the restrictions set out elsewhere in this Agreement and the AUP, not: (a) sell, resell, license, sublicense, distribute, make available, rent or lease the Services; (b) permit access to or use of the Services in a way that circumvents a contractual usage limit set out in this Agreement or an Order or use the Services to access any of Intelledox’s intellectual property except as permitted under this Agreement or an Order; (c) copy the Services or any part, feature, function or user interface, thereof; (d) frame or mirror any part of the Service, other than framing on Client’s own intranets or otherwise for Client’s own internal business purposes or as permitted herein; (e) use the Service in order to build a competitive product or service or to benchmark with a non-Intelledox product or service; (f) reverse engineer any Service (to the extent such restriction is permitted by law); (g) use the Services to store or transmit infringing, libelous, unlawful or tortious material or to store or transmit material in violation of third-party privacy rights, (h) use the Services to store or transmit Malicious Code, (i) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein or (j) attempt to gain unauthorized access to the Service or its related systems or networks.

    6. Certification

      Upon Intelledox’s request, Client shall promptly furnish Intelledox with written certification verifying that the Services are being used in accordance with this Agreement or the Order.   Intelledox shall have the right, upon five (5) business days’ notice to Client, one (1) time per each twelve (12) month period and at Intelledox’s sole cost and expense during regular business hours, to conduct an audit of Client’s use of the Services.  Any such audit will consist solely of a review of Client’s compliance with the terms of this Agreement, including, if necessary, an examination of the Environments.  Client will provide all reasonable assistance to Intelledox during such review, including access to Client’s records and systems to verify that the Services are being used in accordance with this Agreement.

  5. Fees; Payment

    1. Fees

      Client shall pay the fees specified in the Order. Except as otherwise set out in an Order, fees are based on Services purchased and not actual usage, payment obligations are non-cancelable and fees paid are non-refundable. Subscriptions purchased cannot be decreased during the License Term

    2. Payment

      Unless otherwise set out in an Order, fees are due 30 days from the invoice date. Client is responsible for providing complete and accurate billing and contact information. If Client selects to pay by credit card in an Order, Client authorizes Intelledox to charge such credit card for all Services listed in the Order for the initial License Term and any renewal term(s) thereto. Such charges shall be made in advance, annually, If the Order specifies that payment will be by a method other than a credit card, Intelledox will invoice Client in advance in accordance with the Order. Client will pay a late charge of one percent (1%) per month or the highest amount permitted by law, whichever is greater, on any fees not paid by the due date. Unless otherwise identified in a Schedule, all fees are stated in and will be paid in United States currency.

    3. Taxes

      The fees do not include any amount for taxes. Client will pay all applicable federal, state and local sales, use, property and other taxes imposed on or with respect to the Services, other than taxes based on Intelledox’s income.

  6. Confidentiality

    1. Definition

      Confidential Information shall mean all confidential and proprietary information of either party, including its Affiliates, (the “Disclosing Party”), that is disclosed to the other party or to which such party gains access in connection with this Agreement (the “Receiving Party”), including but not limited to: (i) customer and prospect lists, names or addresses, existing agreements with Disclosing Party and business partners; (ii) pricing proposals, financial and other business information, data processes and plans; (iii) research and development information, analytical methods and procedures, hardware design, technology (including the Services), financial information, personnel data; (iv) information concerning the customers and potential customers of either party; (v) business practices, know-how, marketing or business plans; (vi) this Agreement, Acceptable Use Policy, SLA and training materials; and (vii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential.

    2. Duty of Confidentiality

      The Receiving Party shall: (i) hold the Disclosing Party’s Confidential Information in strict confidence, and apply at least the standard of care used by the Receiving Party in protecting its own Confidential Information, but not less than a reasonable standard of care, and shall not disclose such Confidential Information to any third party, except as permitted under this Agreement; and (ii) not use any Confidential Information of the Disclosing Party except as reasonably required to exercise its rights or perform its obligations under this Agreement. Each party shall cause its employees, subcontractors, agents and, if permitted, Affiliates, who require access to such Confidential Information to abide by such obligations.

    3. Exclusions

      The foregoing obligations set out in Section 6.2 shall not apply to information that: (i) is already public or becomes available to the public through no breach of this Agreement; or (ii) was in the Receiving Party’s lawful possession before receipt from the Disclosing Party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or, (iv) is independently developed by or on behalf of the Receiving Party without use of any Confidential information. If the Receiving Party is compelled to disclose the Confidential Information by a governmental agency or a court, the Receiving Party will give the Disclosing Party reasonable notice to enable such party to try to protect the confidentiality of the Confidential Information. Upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information in its possession and certify its destruction in writing, provided, however, that the Receiving Party may retain one (1) copy of the returned or destroyed items for archival purposes in accordance with its records-retention policies and subject to this Section. Notwithstanding anything to the contrary set out herein, Client hereby grants Intelledox a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client relating to the operation of the Services.

    4. Exclusions

      The foregoing obligations set out in Section 6.2 shall not apply to information that: (i) is already public or becomes available to the public through no breach of this Agreement; or (ii) was in the Receiving Party’s lawful possession before receipt from the Disclosing Party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or, (iv) is independently developed by or on behalf of the Receiving Party without use of any Confidential information. If the Receiving Party is compelled to disclose the Confidential Information by a governmental agency or a court, the Receiving Party will give the Disclosing Party reasonable notice to enable such party to try to protect the confidentiality of the Confidential Information. Upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information in its possession and certify its destruction in writing, provided, however, that the Receiving Party may retain one (1) copy of the returned or destroyed items for archival purposes in accordance with its records-retention policies and subject to this Section. Notwithstanding anything to the contrary set out herein, Client hereby grants Intelledox a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client relating to the operation of the Services.

  7. Warranties

    1. General

      Each party represents that it has validly entered into this Agreement and has the legal power to do so.

    2. Service Warranties

      Intelledox represents and warrants that the Services shall perform all material functions set out in the applicable Documentation and shall otherwise operate in substantial accordance with such Documentation. If the Services fail to comply with this warranty, Client must notify Intelledox in writing of any alleged defects with the Services. Intelledox will have thirty (30) days from receipt of such notice or an additional period of time as reasonably agreed to by the parties to correct such defects in accordance with this Agreement. Client’s sole and exclusive remedy for a breach of this Section is set out in the SLA.

    3. Disclaimer

      INTELLEDOX DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT INTELLEDOX WILL CORRECT ALL ERRORS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND INTELLEDOX AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. INTELLEDOX WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED BY THE UNAUTHORIZED USE OF THE SERVICES OR ACTS OF ABUSE OR MISUSE BY CLIENT. IN ADDITION, INTELLEDOX WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE SERVICES OR THE LOSS OR CORRUPTION OF CLIENT’S DATA OR FILES PROCESSED OR STORED BY THE SERVICES.

  8. Indemnification

    1. Intellectual Property

      Intelledox shall indemnify, defend and hold Client, its officers, directors and employees, harmless from all losses, damages, costs and expenses to the extent they arise out of any claim by a third party that the Services, when used in accordance with the applicable Documentation and in compliance with the terms of this Agreement, infringe or misappropriate any copyright, trade secret or United States trademark or United States patent. Intelledox will have control of the defense and will defend at its own expense, any claim or litigation to which this indemnity relates, including the right to settle any such claim. Client must notify Intelledox promptly of any such claim and provide reasonable cooperation to Intelledox, upon Intelledox’s request and at Intelledox’s cost, to defend such claim. Client may elect to participate in the defense of any claim with counsel of its choosing at its own expense.

    2. Remedies

      If the Services are subject to a claim of infringement or misappropriation, or if Intelledox reasonably believes that the Services may be subject to such a claim, Intelledox reserves the right to: (a) replace the Services with functionally equivalent Services; (b) modify such Services while retaining substantively equivalent functionality; (c) procure at no cost to Client the right to continue to use such Services; or (d) if the foregoing is not commercially reasonable, direct Client to terminate use of such Services. If Intelledox directs Client to terminate use of such Services (or a permanent injunction is issued against such use), Client will immediately terminate such use and Client’s remedies, in addition to the indemnification set out herein, will be limited to a refund of any pre-paid fees for the Services that are subject to the infringement or misappropriation claim for the balance of the License Term.

    3. Exclusions

      Intelledox will have no obligation to indemnify Client under this Section 8 if the infringement or misappropriation results from Client’s (a) combination, operation or use of the Services with non-Intelledox products if such claim of infringement or misappropriation would have been avoided had such combination, operation or use not occurred; (b) use of the Services in breach of this Agreement or Order; or (c) Client Data or a non-Intelledox application.

    4. Client Indemnification

      Client shall defend Intelledox against any claim, demand, suit or proceeding made or brought against Intelledox by a third party alleging that any Client Data infringes or misappropriates such third party’s intellectual property rights, or arising from Client’s use of the Services in violation of the Agreement, the Acceptable Use Policy or applicable law (each a “Claim”). Client shall indemnify Intelledox from any damages, attorney fees and costs finally awarded against Intelledox as a result of, or for any amounts paid by Intelledox under a settlement approved by Client; provided Intelledox.: (a) promptly gives Client written notice of the Claim, (b) give Client sole control of the defense and settlement of the Claim (except that Client may not settle any Claim unless it unconditionally releases Intelledox of all liability), and (c) give Client all reasonable assistance, at Client’s expense. Intelledox may elect to participate in the defense of any claim with counsel of its choosing at its own expense.

  9. Limitation of Liability

    EXCEPT FOR INTELLEDOX’S LIABILITY ARISING UNDER SECTION 8 (INDEMNIFICATION), CLIENT’S LIABILITY UNDER SECTION 4 (USE OF SERVICES) AND EITHER PARTY’S LIABILITY UNDER SECTION 6 (CONFIDENTIALITY), EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY, IN TORT, CONTRACT OR OTHERWISE RELATING TO THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO INTELLEDOX DURING THE PRECEDING 12-MONTH PERIOD. EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 (INDEMNIFICATION) AND SECTION 6 (COFIDENTIALITY), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, DATA OR USE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

  10. Term & Termination; Suspension

    1. Term of Agreement

      This Agreement shall commence as of the date of the Order and shall continue in effect until terminated as set forth in this Agreement or until expiration of the License Term.

    2. Termination of Purchased Subscriptions

      The term of each Subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, each License Term will automatically renew in additional twelve (12) month terms unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant License Term. The fees during any renewal term may be increased by up to 10% above the applicable fees during the prior License Term; unless Intelledox provides Client with a notice of different pricing at least 60 days prior to the applicable renewal term. Except as provided in an Order, renewal of promotional or one-time priced subscriptions will be at Intelledox’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior License Term’s per-unit pricing

    3. Termination

      Either party may, by written notice, immediately terminate this Agreement if the other party commits a material breach of this Agreement and fails to cure such breach within 30 days of receipt of a notice detailing the breach. Intelledox may terminate this Agreement upon written notice to Client upon the occurrence of any of the following events: (a) a receiver is appointed for Client or its property, (b) Client makes a general assignment for the benefit of its creditors, (c) Client is unable to pay its debts as they become due, (d) Client commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 days, or (v) Client is liquidating, dissolving, or ceasing to do business in the ordinary course

    4. Effect of Termination

      Upon: (a) expiration of a License Term; or (d) termination of this Agreement, Client will immediately cease use of the Services and promptly return or destroy all copies of Intelledox Confidential Information in Client’s possession. If requested, Client will certify in writing to Intelledox or its designee compliance with the foregoing. If this Agreement is terminated by Client in accordance with Section 10.3, Intelledox will refund Client any prepaid fees covering the remainder of the License Term after the effective date of termination. If this Agreement is terminated by Intelledox in accordance with Section 10.3, Client shall pay any unpaid fees covering the remainder of the License Term. In no event will termination relieve Client of Client’s obligation to pay any fees payable to Intelledox for the period prior to the effective date of termination.

    5. Suspension of Service

      If any amount due under an Order is 30 or more days overdue (or 10 or more days overdue in the case of amounts authorized to be charged to a credit card), Intelledox may, without limiting any other rights and remedies, accelerate unpaid fee obligations hereunder so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. Intelledox will not exercise its rights under this Section if Client is disputing the fees reasonably and in good faith and cooperating with Intelledox to diligently resolve the dispute. Any use of the Services by Client in breach of this Agreement or an Order or use that, in Intelledox’s reasonable opinion, threatens the security, integrity or availability of the Services, may result in the immediate suspension of Client’s use of the Services; provided, however, Intelledox shall use commercially reasonable efforts to notify Client and provide Client with an opportunity to remedy such violation or threat prior to such suspension.

    6. Surviving Provisions

      Sections 4 (Use of Services); 5 (Fees), 6 (Confidential Information), 7 (Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Term) and 11 (General) and other sections that by their nature are intended to survive, shall survive termination of this Agreement indefinitely or to the extent set out therein.

  11. General

    1. Governing Law

      This Agreement shall be governed by the laws of the State of Texas without reference to principles of conflict of laws. The United Nations Convention on contracts for the international sale of goods shall not apply to this Agreement.

    2. Force Majeure

      Neither party shall be liable for and each party shall be excused from any failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control.

    3. Independent Contractor

      The parties shall at all times be independent contractors for purposes of this Agreement, and not agents, employees, or partners. Each party shall so represent itself to all other parties. Except as provided herein, neither party has granted to the other party the right to bind it in any manner whatsoever. Each party assumes full responsibility for the actions of its personnel while performing any services and such party shall be solely responsible for the supervision, daily direction, control of its personnel, and for the payment of all of their compensation.

    4. Assignment

      Client shall not transfer or assign any of its rights or obligations under this Agreement without the prior written consent of Intelledox, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without Intelledox’ written consent will be void and of no force and effect.

    5. Waiver

      Failure by either party to enforce at any time any provision of this Agreement shall not be construed as a waiver of such provision or of any other provision or of the right of that party to enforce such provision.

    6. Headings; Severability

      The captions used in this Agreement are for reference only and do not constitute substantive matter to be considered in construing the terms of this Agreement. Should any term or condition contained in this Agreement be held invalid, or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein as long as the Agreement remains a workable instrument to accomplish the intent and purposes of the parties.

    7. Notice

      Any notices to be provided hereunder by either party alleging a breach of this Agreement shall be in writing and shall be deemed delivered if delivered personally, if delivered by recognized overnight express mail service or if by mail, registered and certified, postage prepaid with return receipt requested. Notices shall be addressed to the addresses of the parties set out in an Order or to other addresses as a party may specify from time to time. Any other notice provided by Intelledox under this Agreement may be sent by United States mail or e-mail to the individual designated by Client.

    8. Export Compliance

      The Services may be subject to export laws and regulations of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied-party list. Client shall not permit access to or use of the Service from any U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

    9. U.S. Federal Government End Use Provisions

      If the Client is the U.S. government, the terms of this Section shall apply. Intelledox provide the Services solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Intelledox to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

  12. Entire Agreement

    This Agreement constitutes the complete agreement between the parties with regard to its subject matter and shall not be modified or amended except in writing as agreed to by the parties. This Agreement supersedes all proposals, understandings, representations, prior agreements or communications relating to the Services and the subject matter of this Agreement. This Agreement also supersedes any pre-printed terms contained on any purchase order or similar document issued by Client and any such terms will have no force or effect. This Agreement will not be construed against the party that has prepared this Agreement, but instead will be construed as if both parties prepared the Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be the Order and this Agreement.


EXHIBIT 1

ACCEPTABLE USE POLICY

Intelledox, Inc. (“Intelledox”) has developed this Acceptable Use Policy (the “AUP”) to establish the obligations of each end user client (the “Client”) concerning the Services, as set out in the Agreement and the Order. Intelledox reserves the right to modify the AUP at any time. By using the Services, Client consents to be bound by the terms of this AUP. Intelledox reserves the sole and absolute right to interpret, apply, define and implement this AUP.

Suspension; Termination

If Intelledox determines that Client has violated this AUP, Intelledox may terminate or suspend its provision of the Services to Client. Intelledox will suspend service for violation of the AUP on the most limited basis as Intelledox determines is reasonably practical under the circumstances to address the underlying violation. Intelledox will attempt to notify Client prior to suspending service for violation of the AUP (which may be via email or any other notification); provided, however, Intelledox may suspend service without notice if Intelledox becomes aware of a violation of any applicable law or regulation or activity, including but not limited to a violation of the AUP, that exposes Intelledox to criminal or civil liability or that exposes the Services to harm. Intelledox may take such further action as Intelledox determines to be appropriate under the circumstances to eliminate or preclude repeat violations, and Intelledox shall not be liable for any damages of any nature suffered by any Client or any third party resulting in whole or in part from Intelledox ‘s exercise of its rights under this AUP.

Trade and Export Regulations

Client shall comply with all applicable laws and regulations, including, without limitation, applicable trade and export regulations of the respective country in which the Services are utilized.

Prohibited Content

Use of the Services in violation of any applicable laws, rules or regulations is a violation of this AUP. Such use includes, but is not limited to, use of the Services to distribute content or links to content involving child pornography, terrorist threats, phishing, credit card fraud, racketeering, defamation and slander.

Client shall not use the Services to distribute content or links to content that Intelledox reasonably believes:

  • Constitutes, depicts, fosters, promotes or relates in any manner to pornography or the marketing of pornographic materials,
  • Is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
  • Is defamatory, intended to harass or threaten or violates a person’s privacy;
  • Creates a risk to public safety or health in general or to any individual’s safety or health;
  • Improperly exposes trade secrets or other confidential or proprietary information of any third party;
  • Infringes the copyright, patent or other intellectual property right of any third party, including the Digital Millennium Copyright Act (“DMCA”) or similar legislation;
  • Is malicious or fraudulent or may result in retaliation against Intelledox by offended recipients.

Client shall not use any Services to facilitate the following activities:

  • IRC, Egg Drops, BNC, or IRC bots
  • Proxies
  • Game Servers
  • Online gambling services
  • Unauthorized vulnerability monitoring and testing
  • Unsolicited email and/or SPAM (including but not limited to any conduct that would violate the CAN-SPAM Act of 2003 or any other similar legislation)
  • Denial of Service attacks
  • Server Abuse
  • Distribution of Malware
  • Abuse Complaints

Reporting Violation of AUP

If Client becomes aware of a violation of this AUP, Client shall submit reports of such alleged violation to Intelledox at abuse@Intelledox.com.

Reports of alleged violations should include name, contact information, IP address, and description of the violation. Intelledox shall use commercially reasonable efforts to review all third party reports and take appropriate actions, in its sole discretion, in respect of such violations.


EXHIBIT 2

SERVICE LEVEL AGREEMENT

  1. Definitions

    For the purpose of this SLA, the following terms shall have the corresponding definitions.

    Availability
    Means the total percentage of time within a Calendar Month that the Services are available through the Hosting Services, excluding Scheduled Downtime and Emergency Maintenance, and shall be calculated as follows:
    Availability = Maximum Availability — Service Outage / Maximum Availability x 100
    Calendar Month
    means each calendar month during the term of the Hosting Services.
    Emergency Maintenance
    means there may be instances where it is not practical for Intelledox to give advance notice of a maintenance event, for example, in the event of an unforeseen disruption of a critical service. Addressing these events may require that emergency maintenance be performed. In these cases, Intelledox will be entitled to disrupt the Services to conduct this emergency maintenance without prior notice.
    Maximum Availability
    means the total number of minutes in a Calendar Month less the Scheduled Downtime.
    Scheduled Downtime
    means routine tests, maintenance, upgrades or repairs performed by Intelledox on any part of its infrastructure; provided, Intelledox will provide Client fourteen (14) days prior notice for Client-impacting maintenance, via the Intelledox customer portal. Where possible, such maintenance shall be scheduled outside of standard business hours.
    Service Disruption
    means each occasion of 10 or more consecutive minutes in which Client is unable to access the Services.
    Service Level
    means the Availability of the Hosting Services in a Calendar Month.
    Service Level Exceptions
    means the exclusions from a Service Outage set out in Section 3, below.
    Service Outage
    means the aggregate of Service Disruptions in a Calendar Month, excluding the Service Level Exceptions.
  2. Service Credits

    Subject to the Service Level Exceptions, Intelledox shall provide Client with the following Service Level Credits if in any Calendar Month the Service Availability is 99.5% or lower

    Availability (%)Service Level Credit (%)
    99 – 99.492.5
    95 – 98.905
    90.1 – 94.910
    < 90.020
  3. Notice of Service Outage; Remedy

    If Client is unable to access the Services, Client shall promptly notify Intelledox. To receive a Service Level Credit, Client must notify Intelledox during the occurrence of the problem. Upon the conclusion of each Calendar Month, Intelledox shall determine the Service Level for such Calendar Month. If Client is entitled to a Service Level Credit, Intelledox shall, as Client’s sole and exclusive remedy for the Service Outage, include the Service Level Credit on the subsequent annual invoice. If the Service Level Credit occurs in the last month of the Hosting Term, Intelledox shall provide Client with a refund equal to the Service Level Credit within thirty (30) days following termination of the Hosting Services.

  4. Service Level Exceptions

    Intelledox shall not be liable for any failure to meet the Service Level due to, (and a Service Outage shall not include), the following:

    • periods of Scheduled Downtime or Emergency Maintenance;
    • any non-production uses of the Services;
    • a Force Majeure event;
    • any act or omission of Client, including the failure to comply with the Agreement or the AUP; and
    • an outage caused by Client’s hardware, software or other third party equipment procured, licensed or controlled by Client, including network connections and telecommunication problems.

EXHIBIT 3

SUPPORT SERVICES

  1. Overview of Support Services

    1. Client will obtain Support Services for the Services for the initial term set out in an Order. Following such initial term and continuing during the License Term, Client may elect to purchase additional Support Services in twelve (12) month terms at Intelledox’s then current rates in accordance with this Exhibit.
    2. Support Services consist of: (i) reasonable amounts of telephone support to assist Client with the use of the Services in accordance with the Software Support Policies; (ii) Enhancements provided to other Clients of the Services who have paid for Support Services for the current maintenance term; and (iii) the correction of errors or non-conformities with the Services in accordance with the Software Support Policies. All telephone support shall only be provided in English. Support may also be provided through Intelledox’s website or by e-mail.
    3. Support Services for the Services may be terminated by Client prior to the end of a term upon notice to Intelledox. Intelledox may terminate Support Services for the Services upon at least ninety (90) days written notice to Client prior to the end of any term or upon one hundred eighty (180) days written notice to Client for any superseded versions of the Services or if the Services are licensed for use on an operating system or computer that is no longer supported by their developer or manufacturer.
    4. If Client terminates or declines to renew Support Services for the Services and subsequently elects to renew Support Services, Client will pay to Intelledox the applicable fees for the total period of non-Support and for the subsequent twelve (12) month renewal term.
  2. Support Procedures

    1. Intelledox will log all problems with the Software reported by Client in accordance with the procedure set out in herein. Upon identification of any error, Client shall provide Intelledox with enough information to reproduce the error. If Intelledox is unable to replicate the problem, Intelledox will request a second sample. If Intelledox is still unable to replicate the problem from this second sample, then Intelledox will close the reported problem. Intelledox will notify Client as soon as possible if it determines that no error exists or if Intelledox is unable to reproduce the reported problem.
    2. Client will appoint a “lead user” to co-ordinate internal product support within Client’s organization and to act as a single point of contact with Intelledox’s Support team. A lead user may be the single point of contact for multiple sites within the Client’s organization.
    3. Intelledox shall use all reasonable endeavors to correct any Error in the Software, with a level of effort commensurate with the Error Severity Levels as determined by Intelledox, within the Resolution Time, identified below. If Intelledox is unable to correct a reported error or non-conformity that is classified in the Support Guidelines as a production emergency or serious problem within thirty (30) days following notice from Client or an additional period of time reasonably agreed to by the parties, Client may terminate Support Services for such Services and receive, as its sole and exclusive remedy, a pro-rata refund of the fees paid for Support Services for the balance of the existing maintenance term.
    4. Intelledox releases Enhancements from time to time in its sole discretion. Typically, Major releases are released once a year and minor releases may be released throughout the year. Point releases may be released between minor releases to address specific functionality issues. All releases shall be furnished at no cost to Client if current on annual fees for Support. Intelledox supports the latest major release of the Software and the major release version of the Software immediately preceding the latest version.
    5. Support does not include any training services and the offering of any such services shall be at the sole discretion of Intelledox and subject to additional fees as agreed to by the parties.
  3. Client Obligations

    Intelledox’s provision of Support is contingent on Client’s compliance with the following additional obligations:

    1. Client’s personnel shall be trained in the operation of the Software, have knowledge and experience of software products sufficient for proper interaction with Intelledox technical staff in matters of support of the Software.
    2. Client shall provide Intelledox with sufficient documentation, data, details and assistance with respect to any reported errors so as to enable Intelledox to reproduce and verify the same as an error.
    3. Client shall install all Enhancements, including all fixes, patches and upgrades in accordance with any reasonable instructions issued by Intelledox.
    4. Client shall assist Intelledox to diagnose and correct reported errors by providing: (a) reasonable access (on-site or remote as requested by Intelledox) to the applicable Software, the computer Environment and hardware on which such Software is installed and operating; (b) all relevant documentation and records, including sample output and other diagnostic information and (c) personnel trained in the operation of the Software who have authority to implement remedial actions as instructed by Intelledox. Client acknowledges that failure to provide such assistance will affect Intelledox’s ability to achieve the relevant Resolution Time.
    5. Client shall maintain a current backup copy of all of its programs and data. In addition, Client shall implement procedures for the protection of information and the implementation of backup facilities in the event of errors or a malfunction of the Software
    6. Client acknowledges and agrees that the Support Fees are based on the application of the limitations described in this Agreement. Client further acknowledges that Client will be solely responsible for all maintenance and support of its own software, data and equipment as well as the Environment and hardware platform configuration it may be using in conjunction with the Software. Intelledox shall have no liability for any loss or corruption of any such software, data, equipment, Environment and/or the hardware platform configuration, however caused.
  4. Exclusions from Support

    Intelledox shall have no obligation to provide Support in connection with any error, questions or problems that arise from:

    1. any modification, customization, alteration or addition to Software, or attempt thereof, made by Client (excluding configuration changes to Client’s database permitted by the Documentation or at Intelledox’s direction);
    2. use of the Software: (a) in a manner other than described in the user help menus (b) in conjunction with software, equipment, or an operating environment that was not the Environment, or (c) in any way not permitted under the Agreement;
    3. the negligence or misconduct of any User;
    4. any patch or upgrade to the Operating Environment, or other hardware or software, unless Intelledox has notified Client of its support for such patched or upgraded Operating Environments;
    5. the malfunction of any element of the Operating Environment, or any equipment not provided by Intelledox;
    6. failure by Client to implement reasonable recommendations in respect of or solutions to Errors previously advised by Intelledox; changes to the Operating Environment, operating software or other hardware or software not authorized by Intelledox or use of an Environment or hardware platform configuration which is inconsistent with the stated supported platforms or;
    7. the creation or correction of custom Actions, Custom Questions, API integration issues, etc.
  5. Notice of Service Outage; Remedy

    Intelledox may, at its option, offer to perform troubleshooting, error correction, diagnostic or other services relating to the matters described in this Exhibit at its then current professional services rates. Client shall reimburse Intelledox, at Intelledox’s then current professional services rates, for all time spent troubleshooting an error that Intelledox determines was caused by one of the conditions set forth in this Exhibit, but was not identified as such until after Intelledox began troubleshooting.

    1. CONTACT INFORMATION

      There are three ways to contact Support.

      eMail us:ixsupport@intelledox.com
      Visit the Intelledox Support Portal:http://ixsupport.intelledox.com
      or, Phone our US Offices:888.576.6428 ext 3

      The preferred method of communication is email or the Intelledox Support Portal except that all Category A Errors must be reported to Intelledox by telephone. All communications with Intelledox customer support will be in English.

    2. HOURS OF SUPPORT

      Support will be provided on a 24×7 support, excluding Federal holidays.


    Definition of Incident Categories

    Category A IncidentSoftware is unavailable and cannot be accessed or used.
    Category B IncidentSoftware as a whole can be accessed but one or more of the services cannot be accessed and users cannot carry out their planned work
    Category C IncidentAn incident that is inconvenient for the user, but where there is a workaround that does not disrupt the planned workload.
    Category D IncidentAn incident which has a minor impact on the Software which can be endured without interruption to the planned workload.

    Service Level Response Times

    The following table provides estimated response and fix times, during business hours, for each category of incident.

    Service Measure

    Initial Response Time

    Fix Time
    (estimated)

    Permanent
    Fix
    (estimated)

    Category A Defect

    4 hours

    24 hours

    15 days

    Category B Defect

    8 hours

    3 days

    Next Release

    Category C Defect

    online submission only

    Future release

    Future release

    Category D Defect

    online submission only

    Future release

    Future release

    Service Level Procedures

    For Category A & B Defects, please follow the following procedure:

    • Call the toll free number provided above.
    • Review the problem with the Support Desk Representative to properly categorize your problem as a “Critical” issue.
    • Critical incidents are considered to be incidents that are business critical (i.e. the software does not operate correctly or where a serious error prevents the ongoing use of the software and there is no workaround).
    • All business critical incidents will be escalated to the highest priority and we will work with you until the issue is resolved or there is a suitable work-around.
    • Should delays occur in resolving problem, your organization may escalate as follows:
    • Sales Executive
    • Sales Vice President
    • President, North America

    For Category C & D Defects, please follow the following procedure:

    • General incident support (Category C & D) can be accessed via the Online Service Centre. All incidents must be reported via the Online Service Centre, and to provide contact points for follow up and resolution. If your support level permits your organization to report Category C Defects via the telephone, please call toll free number above.
    • You can also access the Online Service Centre to:
    • Download patches and new releases;
    • Gain information relating to future release schedules;
    • Gain access to existing Tip Sheets and Frequently Asked Questions;
    • Log suggestions and comments for consideration in future versions

    Accessing the Intelledox Support Portal

    The Intelledox Support Portal can be accessed by Registered Users, who have a current Support Subscription in place and who are using the most current release of the Software. The Support Portal is available 24 hours/7 days a week for: logging incidents; downloading patches and fixes; accessing frequently asked questions and user manuals. Intelledox recommends that one or two users, who are working with the Software regularly and are central to key decisions about the software, be nominated as Registered Users. Please contact the Help desk on +1 888.576.6428 ext. 3 to set up your Registered Users.

    Registered Users are given the authority to Log an incident at the Intelledox Support Portal via http://ixsupport.intelledox.com .

    An ‘incident’ is a single issue or question. If you have more than one incident, please log each one individually. Once the incident is logged, a Service Consultant will assess it and respond accordingly.