1. GENERAL SUPPORT SERVICES DESCRIPTION. Support Services shall be provided for the Service solely as set forth in this Agreement and shall be included in the Fees. Support Services may not be available for the “Free” version of the system, which is defined by any customer using a version of the system, which does not require payment. Support Services shall not be available for issues arising from (i) modification, alteration or configuration of the Service by Customer or a Third Party that has not been authorized in writing by Intro, and/or (ii) technology or intellectual property which has not been provided by Intro pursuant to this Agreement.
Master Subscription Agreement
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU ("CUSTOMER") AGREE TO BE BOUND BY
THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF INTRO ONLINE SYSTEMS LLC'S ONLINE
SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE
TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU", "YOUR" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO
NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE
"I ACCEPT" BUTTON AND MAY NOT USE THE SERVICE. INTRO ONLINE SYSTEMS LLC RESERVES THE RIGHT TO CHANGE OR ADD TO
THIS AGREEMENT. ANY CHANGES OR ADDITIONS WILL BE INCORPORATED INTO THE AGREEMENT POSTED TO THE INTRO ONLINE
SYSTEMS LLC WEB SITE FROM TIME TO TIME. IF YOU DO NOT AGREE TO THIS AGREEMENT, AS IT MAY BE CHANGED FROM TIME TO
TIME, DO NOT ACCESS THE SERVICE.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
means all electronic data or information submitted by Customer to Intro via the Service.
means any on-line help files or written instruction manuals regarding the use of the Services.
means Intro Online Systems, Inc.
means the purchase of the Service submitted by Customer through Intro's online order procedure and accepted by Intro.
means (i) the online, Web-based customer relationship management service, including associated offline components, provided by Intro via http://www.introxl.com and/or other websites from time to time by Intro, and (ii) related document and letter printing services.
means Customer's employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Intro at Customer's request).
2.1 Provision of Service.
3. Use of the Service.
Intro shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and any and all accepted Orders. During the term of this Agreement, (a) the Service shall perform materially in accordance with the Documentation, and (b) the functionality of the Service will not be materially decreased from that available as of the Effective Date.
User subscriptions are for named Users at a facility of Customer as specified in the Orders and cannot be shared or used by more than one facility but may be reassigned from time to time to new Users replacing former Users at the same facility.
3.1 Intro Responsibilities.
4. Fees & Payment.
Subject to the terms and conditions provided herein, Intro shall: (a) in addition to its confidentiality obligations under Section 6, not use, edit or disclose to any party other than Customer the Customer Data; (b) maintain the security and integrity of the Service and the Customer Data; (c) use commercially reasonable efforts to provide the Support Service to Customer as more specifically set forth in Exhibit A attached hereto; and (d) use commercially reasonable efforts to provide the Service in material conformance with the Documentation. Intro reserves the right to take down applicable services containing the Service to conduct routine maintenance checks (“Scheduled Maintenance”). Intro will use commercially reasonable efforts to perform Scheduled Maintenance outside of the business hours of Monday – Friday, 7am to 9pm Central Time. Notwithstanding any other provision of this Agreement, Intro will not be responsible for any damages or costs incurred by Customer, if any, for downtime resulting from Scheduled Maintenance.
3.2 Customer Responsibilities.
(a) Customer shall (i) be responsible for all activities that occur under Customer's User accounts; (ii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Intro promptly of any such unauthorized use; and (iv) comply with all applicable local, state, federal, and foreign laws in using the Service and, if using the Service outside of the United States, not use the Service in a manner that would violate any federal or state laws of the United States.
(b) Customer shall be solely responsible for the manner in which Customer and the Users use the Service. Customer shall ensure that only authorized Users have access to any passwords provided by Intro for use in connection with the Service and shall not disclose such passwords to any other individual. Customer acknowledges and agrees that it is solely responsible for strictly maintaining the confidentiality and integrity of such passwords and Customer shall indemnify and hold harmless Intro from and against any liability, damages or costs arising from Customer’s failure to comply with this Section. Customer shall notify Intro immediately in writing if the security or integrity of a password has been compromised. Customer shall promptly provide to Intro the name, address, telephone number and email address of each User, as well as the name, company, telephone number and email address for local hardware and internet connectivity support of Customer and User upon receipt of such information.
3.3 Use Guidelines.
Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (f) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Third-Party Providers.
Certain third-party providers, some of which may be listed on pages within Intro's website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service's application programming interface. Intro does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Intro as "certified," "validated" or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
3.5 Hosting Environment.
Customer acknowledges that: (a) Intro provides the Service through computer hardware that is currently located in a third-party server facility operated by Amazon and works with third party merchant services' gateways; (b) Intro does not control the operation of these facilities; (c) these facilities are subject to damage or interruption from earthquakes, floods, fires, power loss, telecommunications failures and similar events; (d) these facilities are also subject to break-ins, sabotage, intentional acts of vandalism or terrorism and similar misconduct; (e) despite precautions taken at the facility, the occurrence of a natural disaster, a decision to close a facility without adequate notice or other unanticipated problems at the facility could result in lengthy interruptions in the Service; and (f) the failure by the Amazon or other third party gateway providers facilities to provide our required data communications capacity could result in interruptions in the Service.
3.6 Return of Customer Data.
Any Customer Data (as defined herein) stored on the third-party server facility shall be Your data and You will have the ability to export Your data files on a once each calendar year during the term (without charge). Intro shall export such data to you within 48 hours (M-F) after receipt of a written request for such data transfer. In the event Customer requests more than one data transfer in any calendar year, each additional transfer will be provided to Customer on payment of an export charge as reasonably determined by Intro.
3.7 Press Releases.
No party shall issue press releases relating to this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld.
4.1 User Fees.
5. Proprietary Rights.
Customer shall pay all fees and charges to their account for the Services subscribed for in any Orders in accordance with the Intro's fees, charges, and billing terms in effect at the time such fee or charge is due and payable. Fees related to the access to the online web-based customer relationship management service are based on one of following: the number of User subscriptions purchased in the relevant Orders, on a per location basis or on a per transaction basis. Except as otherwise specifically provided herein, fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant subscription term stated in any Order. The initial charges for the online web-based customer relationship management service will be equal to the current number of total subscriptions requested times the subscription fee currently in effect.
All fees and prices for the Services are quoted in United States dollars based on the pricing terms as agreed upon. Intro reserves the right to modify such pricing at any time. Any such modifications shall be effective when they are posted to the Intro web site at www.introxl.com. It is Your responsibility to review the posted Agreement from time to time in order to be aware of any such changes. Intro may, but shall not be obligated to, notify You via e-mail of any such changes. Your continued use of the Service following any such modification(s) shall be conclusively deemed an acceptance of all such modification(s).
4.3 Invoicing & Payment.
Fees for the Service will be payable in advance, with the first payment being due and payable upon the date of Your acceptance of this Agreement (the "Effective Date"). The fees for any Services not purchased at the beginning of a month shall be charged for that month and the final month of the Term (as defined herein) on a pro rata basis, based on the number of days remaining or used in such month in such month to total days in such months. The fees set forth herein only address the Services subscribed for under any Orders pursuant to the terms of this Agreement during the Term. Additional services will be separately invoiced and the fees for any Services beyond the Term shall be subject to change as determined in Intro's sole discretion. You will provide Us with valid and updated credit card information or EFT authorization, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card or bank account for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.1 (Term of Agreement). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card or EFT, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.4 Overdue Payments.
Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Intro's discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Late charges are intended as liquidated damages, and reasonable estimates of the amounts necessary to compensate Intro for costs and losses associated with delays in payment, and not as a penalty. In the event that legal action is taken by Intro to collect any unpaid fees or amounts due hereunder, Intro shall be entitled to recover from the Customer its reasonable attorneys' fees, expenses and court costs arising from or related to such legal action.
4.5 Suspension of Service.
If Customer's account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Intro reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full. Resumption of the Service following suspension for non-payment shall require: (a) payment in full, or a promise to pay documented in a manner acceptable to Intro, in its sole discretion, of all amounts currently due to Intro, and (b) payment of a resumption penalty fee equal to 25% of all amounts 30 days or more overdue.
Unless otherwise stated, Intro's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Intro's income. If Intro has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Intro with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.7 Billing and Contact Information.
Customer shall maintain and provide Intro with complete and accurate billing and contact information at all times.
5.1 Reservation of Rights.
Customer acknowledges that in providing the Service, Intro utilizes (a) the Intro Online Systems name, the Intro Online Systems logo, the Intro Online Systems domain name, the product and service names associated with the Service, and other trademarks and service marks; (b) certain audio and visual information, documents, software and other works of authorship; and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Intro Technology") and that the Intro Technology is covered by intellectual property rights owned or licensed by Intro (collectively, "Intro IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Intro Technology or Intro IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 License Grant.
Intro grants Customer and its Users a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable and revocable right to access and use the Service in accordance with the terms of this Agreement.
Customer shall not (a) modify, copy or create derivative works based on the Service or Intro Technology; (b) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service, other than on Customer's own intranets or otherwise for its own internal business purposes; or (c) disassemble, reverse engineer, decrypt, make any attempt to discover the source code or decompile the Service or Intro Technology, or access it in order to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service.
5.4 Customer Data.
As between Intro and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement. Intro may access Customer's User accounts, including Customer Data, solely to respond to service or technical problems or at Customer's request.
Intro shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service.
6.1 Definition of Confidential Information.
7. Warranties & Disclaimers.
As used herein, "Confidential Information"
means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the Intro Technology, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. The Receiving Party may disclose the Disclosing Party’s only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, and such employees and contractors must be bound by this Agreement or have entered into agreements with the Receiving Party containing confidentiality provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein.
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
6.4 Compelled Disclosure.
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Notwithstanding any other provisions of this Agreement, the parties acknowledge and agree that money damages would be difficult to calculate and an insufficient remedy for any breach of either party’s confidentiality obligations hereunder and that any such breach would cause the non-breaching party irreparable harm. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts (without posting bond), it being specifically acknowledged by the parties that any other available remedies are inadequate.
8. Mutual Indemnification.
Each party represents and warrants that it has and throughout the term hereof will have, the legal power and authority to enter into this Agreement and to carry out and perform its obligations hereunder. Intro represents and warrants that (a) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) it owns or otherwise has sufficient rights to the Service and the Intro Technology to grant the rights and licenses granted herein; and (c) the Service and Intro Technology do not infringe any intellectual property rights of any third party.
EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICE, SUPPORT SERVICES, INTRO TECHNOLOGY, INTELLECTUAL PROPERTY MATERIALS, INFORMATION AND OTHER ITEMS PROVIDED BY INTRO UNDER THIS AGREEMENT ARE PROVIDED TO CUSTOMER AND THE USERS ON AN "AS IS" AND "WHERE IS" BASIS WITH NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE AND INTRO AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NONINFRINGEMENT AND MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INTRO DOES NOT WARRANT THAT: (A) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR WITHOUT DELAY; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR ANY DOCUMENTATION OR MATERIAL PROVIDED ON OR THROUGH THE SERVICE (THE "CONTENT") WILL BE ACCURATE OR RELIABLE; (C) THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS; (D) THE QUALITY OF ANY CONTENT PURCHASED OR OBTAINED BY YOU ON OR THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; OR (E) THE SERVICE OR THE CONTENT COMPLIES WITH ANY APPLICABLE LOCAL, STATE, FEDERAL OR FOREIGN LAWS. ANY CONTENT ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED ON OR THOUGH THE USE OF THE SERVICE IS USED AT YOUR OWN DISCRETION AND RISK. INTRO SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE CONTENT OR THE SERVICE.
YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF OR DAMAGE TO DATA, MEDIA, AND/OR CONTENT THAT MAY RESULT IN LOSS OR DAMAGE TO YOU AND/OR YOUR PROPERTY. INTRO SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS OR LOSSES. YOUR ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF THE CONTENT, INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUTING DATA. YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL APPLCIABLE LOCAL, STATE, FEDERAL AND FOREIGN LAWS PERTAINING TO THE USE AND DISCLOUSRE OF THE CONTENT OR ANY OTHER DATA ARISING FROM THE USE OF THE SERVICE.
8.1 Indemnification by Intro.
9. Limitation of Liability.
Subject to this Agreement, Intro shall defend, indemnify and hold Customer harmless against any loss, liability, damage or expense (including reasonable attorneys' fees and court costs) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party arising out or in connection with (a) a breach of any representation, warranty or covenant of Intro hereunder or (b) an allegation that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (i) promptly gives written notice of the Claim to Intro; (ii) gives Intro sole control of the defense and settlement of the Claim (provided that Intro may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to Intro, at Intro's cost, all reasonable assistance.
8.2 Indemnification by Customer.
Subject to this Agreement, Customer shall defend, indemnify and hold Intro harmless against any loss, liability, damage or expense (including reasonable attorneys' fees and court costs) incurred in connection with Claims made or brought against Intro by a third party arising out of or in connection with (a) a breach of any representation, warranty or covenant of Customer hereunder, (b) Customer’s or User’s misuse of the Service or (c) an allegation alleging that the Customer Data infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Intro (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Intro of all liability); and (iii) provides to Customer, at Customer's cost, all reasonable assistance.
9.1 Limitation of Liability.
10. Term & Termination.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF INTRO FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE SOFTWARE, SERVICE AND SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT OR ERRORS, OR OTHER DEFECTS, REPRESENTATION, USE OF SERVICES OR ARISING OUT OF THE FAILURE TO FURNISH SERVICES, WHETHER CAUSED BY ACTS OR OMISSIONS, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER HEREUNDER FOR THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
9.2 Exclusion of Consequential and Related Damages.
EXCEPT WITH RESPECT TO THE PARTIES' LICENSE RESTRICTIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.3 Limitation of Action.
Except for actions for non-payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
10.1 Term of Agreement.
11. General Provisions.
This Agreement commences on the date of Your acceptance of this Agreement (the "Effective Date") and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated as provided herein. The Services are offered on a monthly basis only and may be terminated pursuant to the terms of this Agreement. The “Term” shall mean the period beginning on the Effective Date and ending on the one (1) month anniversary of the Effective Date. The Term, this Agreement and any Order subscriptions under this Agreement will automatically renew for successive one (1) month periods unless Intro or Customer terminates the Agreement in accordance with terms set forth below. User subscriptions applied for under any Order shall commence on the start date of any Order for such subscription and shall continue during the Term on a month to month basis as provided above.
Either party may terminate this Agreement and any Orders upon any of the following events: (a) upon 15 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (c) the other parties terminates or suspends its business; or (d) for any reason upon giving the other party at least 30 days prior written notice of such termination. Intro also may terminate this Agreement if the Customer fails to make any payment due hereunder within 10 days after receiving written notice from Intro that such payment is delinquent. Upon any termination for cause by Customer, Intro shall refund Customer any prepaid fees for the remainder of the subscription term after the date of termination.
10.3 Outstanding Fees.
Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Intro prior to the effective date of termination.
10.4 Return of Customer Data.
Upon request by Customer made within 30 days of the effective date of termination, Intro will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. After such 30-day period, Intro shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Effect of Termination.
Upon any termination of this entire Agreement, (a) Intro shall immediately cease providing the Service to Customer and all licenses granted hereunder shall terminate, and (b) Customer shall promptly (i) pay to Intro all unpaid fees, including any interest and/or late payment fees accrued prior to or upon termination, (ii) return to Intro all tangible embodiments of the software, Service and Confidential Information and (iii) delete or destroy any data or software installed in a Customer’s computer system downloaded from the Service.
10.6 Surviving Provisions.
The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5 (excluding Section 5.2), 6, 7, 8, 9, 10 and 11.
11.1 Relationship of the Parties.
The relationship of Intro and Customer hereunder is that of independent contractors and nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Further, nothing in this Agreement shall prevent Intro from licensing or providing the Service or similar services to any manner to the Service provided hereunder.
11.2 No Benefit to Others.
The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
Any notices required or permitted under this Agreement from You to Intro may be delivered via e-mail and shall be effective upon transmission to email@example.com. Any notices required or permitted under this Agreement from Intro to You may be delivered via e-mail to Your e-mail address as provided by You from time to time (and shall be effective upon transmission) or by posting such notice to the Intro web site at www.introxl.com (and shall be effective upon such posting).
11.4 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Intro may assign this Agreement in whole or in part to entities controlled by Intro. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law.
This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Illinois, without regard to its conflicts of laws provisions.
The state and federal courts located in Cook County, Illinois shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Export Control Laws.
Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.10 Entire Agreement.
This Agreement, including all exhibits and addenda hereto or referenced herein, along with any and all Orders submitted and accepted pursuant to the terms hereof, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Orders executed hereunder, the terms of such exhibit, addendum or Order Forms shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Headings and captions are for the convenience only and are not to be used in the interpretations of the Agreement.
11.12 Force Majeure.
Except with respect to payment obligations, neither party shall be liable for any failure or delay in its performance or equipment due to causes beyond such party’s reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulations, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, terrorist attacks or activities, sabotage, armed conflict, wars; unavailability of or interruption or delay in telecommunication or third party services, virus attacks or hackers, failure of third party software; or inabilities to obtain raw materials, supplies or power used in or equipment needed for provision of this Agreement; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the internet (not resulting from negligent actions or inactions of Intro).
11.13 Change in Agreement.
Intro reserves the right to modify (by changing, deleting or adding terms) this Agreement at any time. Any modifications shall be effective when they are posted to the Intro web site at www.introxl.com. It is Your responsibility to review the posted Agreement from time to time in order to be aware of any such changes. Intro may, but shall not be obligated to, notify You via e-mail of any such changes. Your continued use of the Service following any such modification(s) shall be conclusively deemed an acceptance of all such modification(s).
Exhibit A: Support Services