SUBSCRIPTION SOFTWARE AGREEMENT

This Agreement is between you and INTELLESE, LLC and describes the terms and conditions under which INTELLESE, LLC will make available certain Services, and you will be permitted to use those Services. If you register for a free trial of our Service, all applicable terms and conditions of this Agreement will apply. If you have questions about these terms, please email us at info@intellese.com

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT CUSTOMER TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES. IN THE EVENT YOU REJECT THIS AGREEMENT WITHIN TEN (10) DAYS OF PURCHASE, YOU MAY REQUEST A FULL REFUND OF THE PURCHASE PRICE.

1)    DEFINITIONS

“Affiliates” means any entity that is controlled or under common control with Customer. For the purposes of this Agreement, an Affiliate may mean a third-party that Customer has authorized to operate under its Agreement.

Agreement” means this Subscription Agreement and any Sales Orders.

INTELLESE, LLC” means Intellese, LLC.

Customer Data” means data and information submitted by Customer in connection with its use of the Services.

Customer” means the entity identified in the Sales Order(s) and its Affiliates.

Documentation” means any written or electronic documentation, images, video or text specifying the functionality of the Software or Services that is provided or made available by INTELLESE, LLC to Users.

Effective Date” is the earlier of the date on each Sales Order or the date a User accepts the Agreement.

Limited Offering” means a limited quantity and/or functionality of Services for a limited term at reduced or no charge (for example, as a trial subscription or free demonstration.

Malicious Software” means any file, script, agents or programs intended to do harm such as a virus, malware, Trojan horse, time bomb, worm or other similar harmful software.

Sales Order(s)” means any order form approved by Customer and specifying the Services including, among other things, the Customer, the number and type of Users, the Subscription Term and the Effective Date.

Services” means the internet-based solution specified in the Sales Orders including the Software, Documentation and on-going maintenance and technical support for the Software.

Software” means software provided by INTELLESE, LLC, either by download and/or access through the internet, that allows the User to access any functionality in connection with the Services.

Subscription Term” means the period that Customer has the right to use the Services specified in the Sales Order(s) including the initial term and any renewal terms.

User” means an individual authorized by Customer to use the Services and/or Software including, but not limited to, employees, consultants, contractors and third parties whom you have supplied with a specific user identification.

2)    USE OF SERVICES

  1. a)     Access and Use. INTELLESE, LLC hereby grants Customer a limited, non-exclusive, revocable, non-transferable right to access the Service and use the Software in for its internal business purposes during the Subscription Term and subject to the terms of the Sales Order(s), this Agreement and the Documentation. Customer may not sub-license or transfer the rights granted by INTELLESE, LLC in this Agreement.
  2. b)    Subscriptions. Unless otherwise specified in a Sales Order, a) Services are purchased as subscriptions, b) new subscriptions may be added during a Subscription Term at the same price as the underlying subscription and prorated for the portion of that Subscription Term remaining; c) any added subscriptions will terminate on the same date as the underlying subscriptions; and d) most subscriptions have an auto-renewal provision.
  3. c)      Usage Limits. Services are subject to usage limits specified in the Sales Order(s) and Documentation. Unless otherwise approved in writing by INTELLESE, LLC: a) the Services may not be accessed by more than the number of Users specified in the Sales Order(s); b) a User’s password may not be shared with another individual; c) except as set forth in a Sales Order, a User’s identification may only be reassigned to a new individual replacing one that is no longer using the Service; d) Customer may not exceed the allowable amount of data specified with the Services; e) Customer shall not disassemble, decompile, reverse engineer (except to the extent that the reverse engineering restriction is prohibited by law and then Customer shall provide INTELLESE, LLC prompt written notice of any such action), copy, distribute, modify or sell Services except as expressly and unambiguously permitted by this Agreement. If Customer violates this section, INTELLESE, LLC shall have the right to immediately suspend Services.
  4. d)     Availability. Services are provided as available and INTELLESE, LLC makes no guarantee that the Services will be available continuously. INTELLESE, LLC shall endeavor to provide Services availability of 99.0% measured annually. INTELLESE, LLC reserves the rights to perform monthly maintenance activities aimed at updating its systems with recommended patches and fixes. Planned maintenance will be limited to Sundays between 7:00am and 7:00pm Central time. Administrative and support services will be available Monday through Friday between 7:00am and 7:00pm Central time. INTELLESE, LLC reserves the right to temporarily suspend access to the Services: a) during planned downtimes for upgrades and maintenance (reasonable notice of such downtimes will be provided to Customer); b) during any unavailability beyond our reasonable control such as acts of God, acts of terror or civil unrest; c) during technical failures beyond our control such as inability to access the internet or denial of service attacks; or d) if INTELLESE, LLC suspects or detects Malicious Software.
  5. e)     Internet Connection. A high-speed Internet connection is required for proper use of the Services. Customer is responsible for procuring and maintaining network connections that connect Users to the Services, including but not limited to, “browser” software that supports protocols used by INTELLESE, LLC. INTELLESE, LLC is not responsible for notifying Customer or Users of any upgrades, fixes or enhancements to any such software or for any compromise of Customer Data transmitted across networks or telecommunications facilities that are not owned, operated or controlled by INTELLESE, LLC.
  6. f)     Reservation of Rights. INTELLESE, LLC and its licensors retain all right, title, and interest to all intellectual property created, used, or provided by INTELLESE, LLC for the purposes of this Agreement, including, but not limited to, all Software and Documentation. INTELLESE, LLC shall own all right, title, and interest in and to all modifications, improvements or derivatives of any part of the Services (created by either party). Customer hereby makes all assignments necessary to provide INTELLESE, LLC such ownership rights. Notwithstanding anything in this Agreement to the contrary, INTELLESE, LLC will always retain any and all ownership rights in INTELLESE, LLC’s technology. For technology advances and production efficiency, INTELLESE, LLC reserves the right, from time to time, in its sole discretion and without incurring any liability to Customer to: (a) discontinue or limit its provision of any Services upon ninety (90) days notice; (b) without materially impairing the applicable functionality, alter the specifications, design, construction or territorial or other market scope of distribution of any product or service; and (c) change its sales and distribution policies and practices. INTELLESE, LLC will cooperate with Customer to reduce any inconveniences caused by any change under this section.
  7. g)     Customer Data. Customer is solely responsible for securing and maintaining all rights needed for INTELLESE, LLC to provide the Services. All rights, title and interest in and to Customer Data are, and shall remain, the property of Customer and/or its Affiliates or Users and all intellectual property rights including copyright, trademark, and trade secret rights in Customer Data are and will remain the property of Customer and/or its Affiliates or Users. Subject to INTELLESE, LLC’s confidentiality obligations, Customer hereby grants to INTELLESE, LLC throughout the term of this Agreement and after the term as necessary for any INTELLESE, LLC post-termination obligations to Customer, the necessary rights or license to use Customer Data solely as necessary for INTELLESE, LLC to perform its obligations under this Agreement. Customer shall provide INTELLESE, LLC, in the form and format and specified by INTELLESE, LLC, all Customer data reasonably required by INTELLESE, LLC to provide, monitor and improve the Services. Customer agrees that INTELLESE, LLC may use Customer Data to develop aggregated statistics and other information compiled from all subscribers to the Service. INTELLESE, LLC’s use of Customer Data shall be subject to its Privacy Policy located at: https://intellese.com/privacy-policy-2/
  8. h)     Updates. Any new or modified functionality added to the Software or Services and any updates or enhancements to the Service are subject to the terms of this Agreement. INTELLESE, LLC reserves the right to deploy updates or enhancements at any time.
  9. i)     Feedback. If Customer provides any feedback to INTELLESE, LLC concerning the functionality or performance of an Application (including identifying potential errors and improvements), Customer hereby assigns to INTELLESE, LLC all right, title, and interest in and to the feedback, and INTELLESE, LLC is free to use the feedback without payment or restriction.

3)    CUSTOMER’S RESPONSIBILITIES

  1. a)     General. Customer is responsible for compliance with this Agreement by Users and for all activities that occur through its use of the Services. Customer is responsible for ensuring that its use of the Service complies with all applicable laws and regulations. Customer shall work cooperatively to identify and resolve issues with the Services and to help improve them.
  2. b)     Customer shall: 1) maintain the confidentiality of the administrator and user logon identifications, passwords and account information; 2) be responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired it; 3) be responsible for determining whether the Services or information generated using the Services is sufficient for its purposes; 4) use commercially reasonable efforts to prevent unauthorized access to Services, Software and Documentation and shall immediately notify INTELLESE, LLC in writing of any such unauthorized access or use; and 5) use the Software and Services only in accordance with the Documentation. If there is unauthorized use by anyone who obtained access through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use and will assist with any actions taken by INTELLESE, LLC to prevent or terminate such unauthorized use.
  3. c)      Customer shall not (by itself or through third-parties): 1) make Services available to anyone other than Users including anyone operating as a service bureau to benefit third-parties; 2) interfere with or disrupt the integrity or performance of the Services or any data contained therein; 3) attempt to gain unauthorized access to Services or their related systems; 4) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software associated with Services: 5) use Services to knowingly post, transmit or store any content that is unlawful, harmful, racist, hateful, obscene or discriminatory (including Malicious Software); 6) access any part of Services, Software or Documentation in order to build a competitive product or service; or 7) use any of INTELLESE, LLC’s intellectual property except as permitted under this Agreement, a Sales Order or the Documentation. INTELLESE, LLC has the right to immediately suspend Customer’s Service in the event that it suspects a violation of this section, and in its sole discretion, terminate this Agreement.

4)    PAYMENT TERMS

  1. a)    Orders and Fees. Customer will pay all undisputed amounts specified in Sales Order(s). Sales Orders shall include the quantity, part number, description and term for all Services provided. Unless otherwise specified in the applicable Sales Order: 1) all amounts payable under this Agreement are denominated in U.S. dollars and Customer will pay all such amounts in U.S. dollars; 2) fees are based on subscriptions purchased and not actual use of the Services; 3) quantities purchased cannot be decreased during the applicable Subscription Term; 4) purchases by Customer are not dependent on the delivery of any future functionality. INTELLESE, LLC will provide Customer with written notice of any increase to Services fees at least 30 days prior to the end of any Subscription Term. For all quotations provided, prices are applicable for 30 days or such time as specified in the quotation. Orders are subject to credit approval and Customer agrees to submit such information as may be reasonably required by INTELLESE, LLC for the determination of credit terms.
  2. b)    Invoicing and Payment. The fees will be invoiced upon execution of the applicable Sales Order and, for each renewal term, at the commencement of such renewal term. Unless otherwise specified on the applicable Sales Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Fees for each renewal term are due on the first day of such renewal term. If Customer provides INTELLESE, LLC with credit card or banking information, it authorizes INTELLESE, LLC to charge such credit card or bank account for all items on the applicable Sales Order and for any renewal term fees. Customer is responsible for providing complete and accurate billing and contact information and promptly notifying INTELLESE, LLC of any changes to such information.
  3. c)      Late Payments. Any undisputed amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. If any undisputed amount is not paid when due, INTELLESE, LLC may condition future subscription renewals and Sales Orders on payment terms that are shorter than those specified in this section.
  4. d)     Taxes. Fees do not include any taxes, levies, duties or similar assessments of any nature including value-added, sales, use or withholding taxes (the “Taxes”). Customer is responsible for paying all Taxes under this Agreement. If INTELLESE, LLC has the legal obligation to pay or collect Taxes under this section, INTELLESE, LLC will invoice Customer unless Customer provides INTELLESE, LLC with a valid tax exemption certificate. INTELLESE, LLC is responsible for taxes assessed against it based on its income, property or employees.
  5. e)     Suspension. INTELLESE, LLC may immediately suspend Customer’s account and access to the Services if (i) Customer fails to make payment due within 10 business days after INTELLESE, LLC has provided Customer with written notice of such failure; (ii) Customer violates this Agreement; or (iii) if reasonably required to prevent unauthorized access to Customer Data. Any suspension by INTELLESE, LLC of the Services under the preceding sentence will not relieve Customer of its payment obligations. Limited Offerings may be terminated or suspended at any time and without notice.

5)    TERM, RENEWAL AND TERMINATION

  1. a)     Subscription Term. The Subscription Term for each subscription shall be as specified in the applicable Sales Order. Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or for one year (whichever is shorter) unless: 1) otherwise provided on a Sales Order; or 2) either party provides written notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term; or 3) the current subscription is a free trial, in which case the subscription will terminate at the end of the initial term.
  2. b)     Agreement Term and Termination. This Agreement starts on the Effective Date and continues until all subscriptions have expired unless it is terminated earlier according to this section. A party may terminate this Agreement for cause if: 1) the other party does not cure its material breach within 30 days of receiving written notice from the non-breaching party; or 2) the other party becomes the subject of a petition in bankruptcy or other proceeding related to insolvency. INTELLESE, LLC may terminate this Agreement for cause: 1) within 10 days written notice of Customer’s failure to timely pay undisputed amounts due under this Agreement; or 2) immediately upon Customer’s breach of Section 3 c). If this Agreement is terminated by INTELLESE, LLC for cause, Customer will pay any unpaid fees covering the remainder of all Subscription Terms.
  3. c)     Effect of Termination. No refunds or credits for fees due under this Agreement will be provided by INTELLESE, LLC if Customer terminates this Agreement prior to the end of all Subscription Terms. Following termination this Agreement, provided Customer makes a written request to INTELLESE, LLC within 30 days of such termination, INTELLESE, LLC will make Customer Data available for download and will offer assistance to transition Customer Data at its then prevailing rates for professional services. After such 30 day period, INTELLESE, LLC shall have no obligation to maintain Customer Data or assist with its transition and INTELLESE, LLC will thereafter delete or destroy all copies of Customer Data unless legally prohibited from doing so. Certain sections of this Agreement shall survive termination including limitations of liability, confidentiality, payment terms and miscellaneous.

6)    CONFIDENTIALITY AND SECURITY

  1. a)     Definition. “Confidential Information” means all information disclosed by or otherwise obtained from a party (“Disclosing Party”) to or by the other party (“Receiving Party”), whether orally, visually, 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. Customer’s Confidential Information includes Customer Data. INTELLESE, LLC’s Confidential Information includes Software, Services, Documentation and its other intellectual property. Confidential Information of each party shall include the terms and conditions of this Agreement and each Sales Order as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party. Confidential Information does not include any information that: 1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; 2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; 3) is received from a third party without breach of any obligation owed to the Disclosing Party; or 4) was independently developed by the Receiving Party.
  2. b)     Protection of Confidential Information. The Receiving Party shall: 1) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care); 2) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and 3) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement, have been advised of its confidential nature and the existence and importance of this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than these.
  3. c)     Disclosure of Confidential Information. All Confidential Information will remain the sole property of the Disclosing Party and its confidentiality will be maintained and protected by the Receiving Party with the same degree of care as the Receiving Party uses for its own confidential and proprietary information, but in no event, less than a reasonable degree of care. The Receiving Party will not use the Confidential Information except as necessary to fulfill its obligations or to enhance the service experience under this Agreement, nor will it disclose such Confidential Information to any third party during the term of this Agreement and for three years after its termination, without the prior written consent of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Upon the request of the Disclosing Party, the Receiving Party will collect and surrender, or confirm the destruction or non-recoverable data erasure of, all Confidential Information and all copies thereof, regardless of form, and any such destruction will be certified in writing to the disclosing party by an authorized officer of the receiving party supervising such destruction. The restrictions on the use or disclosure of any Confidential Information will not apply to any Confidential Information: (a) after it has become generally available to the public without breach of this Agreement by the Receiving Party; (b) is rightfully in the Receiving Party’s possession prior to disclosure as evidenced by competent written proof; (c) is independently developed by the Receiving Party without reliance on the Confidential Information; (d) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (e) is disclosed under operation of law, but only to the extent of such disclosure as required by law. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
  4. d)     Acceptable Use of Services. All products and services subject to this Agreement may be used only for lawful purposes. Customer agrees to comply with all International, Federal, State and Local laws in its use of INTELLESE, LLC’s solutions. In addition, Customer agrees not to use INTELLESE, LLC’s cloud platforms to transmit (or receive): copyrighted material or material protected by trade secret (without the permission of the owner); obscene or threatening material; material intended to harm or that might harm minors; material meant to harass; fraudulent material or offers; forged materials; unprotected sensitive information or personal information or traffic using forged or misleading TCP/IP header information. If INTELLESE, LLC determines that Customer is in violation of this Acceptable Use Of Service, INTELLESE, LLC will warn Customer about the violation. If Customer does not immediately comply with this Acceptable Use Policy, INTELLESE, LLC may terminate this Agreement.
  5. e)      Notification of data breach. If a substantive breach of the security of any of INTELLESE, LLC’s systems occurs, INTELLESE, LLC will notify Customer verbally, within one business day, and in writing, within five (5) business days, of such breach. INTELLESE, LLC will take immediate action to prevent any further breach of its security, and such action will take place as soon as possible after detection of such breach. INTELLESE, LLC will then evaluate and identify further action needed to prevent similar breaches of its security and implement such long-term solution a reasonable period of time after detection of the breach.

7)    WARRANTIES AND DISCLAIMERS

  1. a)     Warranties. Each party represents and warrants to the other that it has validly entered into this Agreement and has the legal power to do so. INTELLESE, LLC warrants that: 1) it shall use industry standard safeguards to protect Customer Data; 2) the Services will perform materially in accordance with the Documentation; 3) INTELLESE, LLC will not materially decrease overall functionality of the Services; 4) the Services will not infringe or otherwise violate any intellectual property rights; 5) the Software shall be free from all liens or other encumbrances; 6) the Services shall be free of Malicious Software; and 7) it will not any open source software in a manner that obligates Customer or INTELLESE, LLC to disclose, make available, offer or deliver the source code of any Software owned by or licensed to Customer to a third party.
  2. b)     Disclaimers. Except as provided in Section 7 a), INTELLESE, LLC and its affiliates and agents: 1) expressly disclaim any and all warranties, whether express or implied, including but not limited to warranties of merchantability, noninfringement, fitness for a particular purpose, title, quality, accuracy, and any warranties arising from course of dealing, usage, or trade practice; 2) do not warrant that access to Services will be uninterrupted, error-free or secure, or that any information, software, or other material accessible or provided through Services is accurate, complete or free of viruses or other harmful contents or components; 3) shall in no event be liable for any inaccuracy, error, omission, or loss, injury or damage (including loss of data) caused in whole or in part by failures, delays, or interruptions of Services, Software or Documentation.

8)    MUTUAL INDEMNIFICATION

  1. a)    Indemnification by INTELLESE, LLC. INTELLESE, LLC shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of Services infringes or misappropriates the intellectual property rights of a third party (“Claim”) and shall indemnify Customer for any damages finally awarded against Customer, including reasonable attorney’s fees incurred by Customer in connection with any such Claim; provided, that Customer: 1) promptly gives INTELLESE, LLC written notice of the Claim; 2) gives INTELLESE, LLC sole control of the defense and settlement of the Claim (provided that INTELLESE, LLC may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and 3) provides all reasonable assistance at INTELLESE, LLC’s expense.
  2. b)    Exclusions. INTELLESE, LLC will have no obligation under this section for any Claim to the extent that it arises out of or is based upon: 1) use of Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; 2) use of Services by Customer for purposes not intended or outside the scope of the license granted to Customer; 3) Customer’s failure to use Services in accordance with instructions provided by INTELLESE, LLC, if the infringement or misappropriation would not have occurred but for such failure; or 4) any modification of Services not made or authorized in writing by INTELLESE, LLC where such infringement or misappropriation would not have occurred absent such modification.
  3. c)      Remedy. If Customer’s use of Services is, or in INTELLESE, LLC’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim, then INTELLESE, LLC will, at its sole option, either: 1) procure the continuing right of Customer to use the Services; 2) replace or modify Services in a functionally equivalent manner so that it no longer infringes; or 3) terminate this Agreement and refund to Customer all unused subscription fees paid by Customer with respect to such Services. This section states INTELLESE, LLC’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by any Services.
  4. d)     Indemnification by Customer. Customer shall defend INTELLESE, LLC against any claim made or brought against INTELLESE, LLC by a third party alleging that Customer Data, or Customer’s use of the Services is in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify INTELLESE, LLC for any damages finally awarded against, and for reasonable attorney’s fees incurred by, INTELLESE, LLC in connection with any such claim; provided, that INTELLESE, LLC: 1) promptly gives Customer written notice of the claim; 2) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally release INTELLESE, LLC of all liability); and 3) provides to Customer all reasonable assistance, at Customer’s expense.

 

9)    LIMITATIONS OF LIABILITY

  1. a)     Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained in this Agreement, INTELLESE, LLC does not have any liability towards Customer for any damages caused by: 1) the use or inability to use any Software, Documentation or Services; 2) the cost of procurement of substitute goods and Services; 3) accuracy of data transferred to any other software or service; or 4) instances in which Customer Data stored or communicated through Services is accessed by third parties through illegal or illicit means; including without limitation situations in which Customer data is accessed through the exploitation of security gaps, weaknesses or flaws that may exist. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  2. b)     Cap on Liability. EXCEPT FOR LIABILITY ARISING OUT OF SECTION 8, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTIONS 4 AND 5.
  3. c)     Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by INTELLESE, LLC to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this section will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.

10)  GENERAL

  1. a)     Relationship. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency or employment relationship between the parties.
  2. b)     Assignability. Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other. Notwithstanding the preceding sentence, AI may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control.
  3. c)      Notices. Except as otherwise provided herein, all notices to the parties shall be sent to the addresses listed on the Sales Order. All notices must be made either via email, conventional mail, or overnight courier. Notice sent via conventional mail, using registered mail, is deemed received four business days after mailing. Notice sent via email or overnight courier is deemed received the second day after having been sent. INTELLESE, LLC may broadcast notices or messages through the Services or by posting notices or messages on INTELLESE, LLC’s web site to inform Customer of changes to the Services, or other matters of importance.
  4. d)     Force Majeure. Except for payment obligations for Services rendered, neither party shall be liable in damages or have the right to terminate this Agreement or any Sales Order for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of god, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, internet service provider, or communications failure).
  5. e)     Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future.
  6. f)      Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the enforceability of the remaining portions.
  7. g)     Governing Law. This Agreement and all matters arising out of or relating to this Agreement, shall be governed by the laws of the state of Texas. Any dispute or disagreement arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located within Travis County Texas and both parties hereto hereby irrevocably consent to venue and personal jurisdiction in such courts.
  8. h)     Entire Agreement. This Agreement and the exhibits or attachments, if any, constitutes the entire Agreement between the parties hereto regarding Customer’s use of Services and supersedes all prior agreements, representations, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter. In the event of conflict or inconsistency among the following documents, the order of precedence is: 1) Sales Order, 2) Agreement, 3) Documentation. These terms and conditions apply to future purchases of products and Services by Customer from INTELLESE, LLC. INTELLESE, LLC may unilaterally update this Agreement from time-to-time. In the event INTELLESE, LLC believes such change is a materially alteration of these terms, INTELLESE, LLC will provide Customer with written notice describing such change. Customer’s continued use of the Services following such updates constitutes Customer’s acceptance of the same.