1. DEFINITIONS. Capitalized terms shall have the meaning set forth below.
1.2 “Claim” means a claim, action, proceeding, or demand made against a person or entity, however arising and whether present or future, fixed or unascertained, actual, threatened, or contingent.
1.3 “Customer” means the company or legal entity that registered to use INTAKT APPLICATIONS under this INTAKT Subscription Agreement for the Project.
1.4 “Customer Data” means all raw data, information, and other content that is provided to INTAKT by End Users for INTAKT APPLICATIONS related to the Project.
1.5 “Confidential Information” means a Discloser’s non-public information (including INTAKT Technology, customer lists, employee lists, etc.) whether or not marked or identified as confidential. The Party disclosing Confidential Information is referred to as “Discloser” and the Party receiving Confidential Information is referred to as “Recipient”. Confidential Information includes non-public INTAKT Technology and non-public Customer Data. Confidential Information does not include information that: (a) is or becomes generally publicly available at or after the time of disclosure through no fault of Recipient; (b) was known to Recipient free of any confidentiality obligations, before its disclosure by Discloser; (c) becomes known to Recipient free of any confidentiality obligations from a source other than Discloser, or (d) is independently developed by Recipient without use of Confidential Information.
1.6 “End User(s)” means each individual Personnel of Customer who is authorized by Customer and this Agreement to use any portion of INTAKT APPLICATIONS.
1.7 “Law” means those applicable federal and state statutes, regulations, codes, ordinances, agency directives, binding court orders, and other binding government requirements.
1.8 “License Term” means the consecutive period for which Customer pays the applicable monthly fee for access to INTAKT APPLICATIONS for the Project, or for free trial access, until termination.
1.9 “Loss” means any damage, loss, cost, expense, or liability incurred by a person or entity.
1.10 “Party” means INTAKT or Customer, as applicable.
1.11 “Personnel” means, with respect to each Party, such as Party’s officers, employees and contractors.
1.12 “Project” means the interrelated tasks and activities related to a single construction project identified when Customer registered to use and access INTAKT APPLICATIONS.
1.13 “INTAKT” or “Company” means inTakt, Inc.
1.14 “INTAKT Technology” means INTAKT APPLICATIONS, including all hardware, interfaces, templates, forms, software tools, algorithms, software (in source and object forms), user interface designs, architecture, toolkits, plug-ins, objects, documentation, network designs, ideas, processes, know-how, methodologies, formulas, systems, data, heuristics, designs, inventions, techniques, trade secrets, and any related intellectual property rights throughout the world included therein, as well as any derivatives, modifications, improvements, enhancements, or extensions of the above, whenever developed.
1.15 “INTAKT” means any and all software application program which is made accessible for Customer to use under the terms of this Agreement. INTAKT includes any updates, enhancements, and new features to the functionality of INTAKT APPLICATIONS incorporated by INTAKT, all of which are subject to this Agreement.
1.16 “Third Party” means any person or entity other than INTAKT or Customer (including Customer’s Personnel).
1.17 “Virus” means viruses, worms, trap doors, Easter eggs, time bombs, cancel bots, trojans, and other malware or malicious code intended to cause or that cause computers or systems to fail to act properly or to function in an unintended manner or permit unintended access to such computers or systems. License keys and other functionality intentionally inserted in INTAKT by INTAKT are not Viruses.
2.1 Grant. Subject to Customer’s compliance with the terms of the Agreement, INTAKT grants Customer, during the License Term and solely for the Project, a limited, non-exclusive, terminable, non-transferable license to access and use INTAKT APPLICATIONS for its internal use by End Users. All rights not expressly granted to Customer are reserved to INTAKT, and all uses not expressly permitted hereunder are prohibited. Customers may authorize Affiliated Provider Personnel to be Licensed Users.
2.2 Limitations on Access and Use. Except to the limited extent expressly permitted in this Agreement, Customer will not: (a) sell, transfer, lease, assign, sublicense, encumber, or distribute any of INTAKT APPLICATIONS; (b) use INTAKT APPLICATIONS as a service bureau; (c) permit any End User or other person to access or use INTAKT APPLICATIONS using another End User’s ID, login or password or otherwise make an End User’s ID, login or password available to any Third Party; (d) import, add, modify or delete data in INTAKT APPLICATIONS database by any method other than direct data entry through INTAKT APPLICATIONS; (e) use INTAKT APPLICATIONS to process anything other than Customer Data; (f) use INTAKT APPLICATIONS for any purpose that is unlawful or prohibited by the Agreement; (g) use INTAKT APPLICATIONS in any manner that could damage, disable, overburden, or impair any INTAKT server, or the network connected to INTAKT, or interfere with any other party’s use and enjoyment of INTAKT APPLICATIONS; (h) attempt to gain unauthorized access to any part of INTAKT APPLICATIONS, other accounts, computer systems or networks connected to any INTAKT server, through hacking, password mining, or any other means; (i) obtain or attempt to obtain any materials, information, or functionality through any means not intentionally made available through INTAKT APPLICATIONS; (j) copy, reproduce, alter, adapt, translate, modify, transmit, perform, create derivative works of, sub-license, distribute, or circulate INTAKT APPLICATIONS, or any associated applications, tools, or data thereof, except to the extent permitted under the Law; (k) disassemble, decompile, reverse engineer, or otherwise attempt to discover the source code in INTAKT APPLICATIONS, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through INTAKT APPLICATIONS, except to the extent permitted under the Law; and (l) take any actions, whether intentional or unintentional, that may circumvent, disable, damage, or impair INTAKT APPLICATIONS control or security systems, or allow or assist a Third Party to do so.
2.3 Suspension of Service. INTAKT may at any time suspend (or require that Customer suspend) the access of End Users to INTAKT APPLICATIONS and/or disable their Login Information in the event of an actual or potential violation of the Agreement, including but not limited to, investigation of suspicious activities, action by authorities, or other legal or regulatory reasons. INTAKT shall not be liable to Customer for any such suspension of access to INTAKT APPLICATIONS.
3. PAYMENT OF FEES
3.1 Payment. The customer must pay the applicable monthly fees according to the payment terms shown during registration. All payments are non-refundable. If Customer has provided for payment via credit card, payment of the applicable monthly fees will be automatically made and the term extended for another month unless terminated by Customer pursuant to Section 6. If payment is not received by INTAKT during normal payment processing, Customer’s access to INTAKT APPLICATIONS shall terminate.
4. CUSTOMER RESPONSIBILITIES
4.1 General. Customer will comply, and Customer will use best efforts to cause all End Users to comply, with the provisions of this Agreement, and Customer shall be responsible for the failure of any such End User or other person to comply.
4.2 Required Resources. Except as provided in the Agreement, Customer will provide all equipment required on its premises, connectivity, services, data, subscriptions, security provisions, third party content licenses, troubleshooting of Customer-side systems, operating system software, configurations, and Personnel required for use of INTAKT APPLICATIONS, or otherwise for the proper conduct of Customer’s business.
4.3 No Substitute for Professional Decisions. INTAKT APPLICATIONS does not make professional decisions, and is not a substitute for Customer’s Personnel applying professional judgment and analysis. Customer is solely responsible for (i) verifying the accuracy of all information and reports produced by INTAKT APPLICATIONS; (ii) determining data necessary for decision-making by Customer and its respective Personnel; and (iii) determining compliance, and complying, with all Laws and licensing requirements for the operation of Customer’s business.
4.4 End User Security. The customer is responsible for providing and administering user names and passwords for all End Users (“Log-in Information”). Except as authorized to provide to Customer Personnel, Customer must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned End User (if applicable) and may not be shared or transferred without approval from INTAKT. The customer is responsible for any and all activities that occur under all End Users accounts. Customer agrees to notify INTAKT immediately of any unauthorized use of End User accounts or any other breach of security. INTAKT will not be liable for any loss that Customer or its End Users may incur as a result of someone else using End User passwords or accounts, either with or without the applicable End Users’ knowledge.
5.1. No Use or Disclosure. The recipient will only use Confidential Information as authorized by this Agreement and will not reproduce, disseminate, or disclose Confidential Information to any Third Party, and will only disseminate and disclose Confidential Information to its own personnel who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this section 5.1. The recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. Recipient shall notify Discloser of any breaches of security that result in or are likely to result in disclosure of Discloser’s Confidential Information.
5.2 Required Disclosure. The recipient may disclose Confidential Information: (a)as approved in writing signed by Discloser; (b) as necessary to comply with any law or valid order of a court or other governmental body; or (c)as necessary to establish the rights of either Party, but only if, in the case of sections 5.2(b) or 5.2(c), Recipient (1) promptly notifies Discloser with the particulars of the required disclosure; and (2) gives Discloser all assistance reasonably required by Discloser to enable Discloser to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.
5.3 Government Audits of Customer. If any government agency audits INTAKT as the result of the provision of access and use of INTAKT APPLICATIONS, INTAKT will cooperate to the extent required subject to its lawful actions to protect INTAKT Confidential Information. The customer will reimburse INTAKT on a time and materials basis at then-current hourly rates in connection with any such audit.
6. TERM AND TERMINATION
6.1 Term. This Agreement applies to access and use of INTAKT APPLICATIONS from the effective registration (including receipt of the applicable payment) until the expiration of the applicable License Term unless terminated earlier under this Agreement.
6.2 Termination without Cause. Either Party can terminate this Agreement for free trial access at any time, and for paid access, Customer can terminate this Agreement at the end of next monthly renewal term, by providing the other Party written notice of non-renewal at least ten (10) days prior to the next scheduled monthly renewal date.
6.3 Termination with Cause.
(a) Material Breach by Either Party. If either Party commits a material breach of this Agreement, the non-breaching Party may give written notice describing the nature and basis of the breach to the breaching Party. If the breach is not cured within thirty (30) days of the notice date, the non-breaching Party may immediately terminate this Agreement, in whole or in part.
(b) Bankruptcy. Each Party may terminate this Agreement (i) immediately upon notice if the other Party ceases to conduct its business, makes a general assignment for the benefit of its creditors, admits publicly its inability to meet its obligations as they come due, voluntarily files for bankruptcy or insolvency, or is the subject of a filing by a Third Party for bankruptcy, insolvency, receivership or similar protection that is not dismissed within forty-five days.
6.4. Effect of Termination. Upon termination of this Agreement, Customer’s rights under this Agreement, including its right to access and use INTAKT and all related functionality, immediately terminate (except as required by law).
6.5. Survival. The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: Customer Responsibilities, Confidentiality, Term and Termination, Proprietary Rights, Warranty Disclaimers, Limitation of Liability, Indemnification, and General Provisions.
7. PROPRIETARY RIGHTS
7.1 Ownership by INTAKT. INTAKT shall own and retain all rights, titles, and interests in the INTAKT Technology. By using INTAKT APPLICATIONS, the Customer does not gain any ownership in such items.
7.2 Ownership by Customer. INTAKT does not claim ownership of any Customer Data. Customer retains ownership of Customer Data.
7.3 Feedback. Unless otherwise agreed upon in writing by the Parties, to the extent that Customer submits to INTAKT any changes, suggestions, improvements, extensions, or derivative works of any INTAKT Technology (collectively “Feedback”), Customer hereby assigns all right, title, and interest to such Feedback, including all intellectual property embodied within. To the extent such Feedback cannot be assigned, Customer hereby grants to INTAKT a nonexclusive, worldwide, royalty-free, perpetual, and irrevocable license to use such Feedback in any way INTAKT determines without notice, payment, or attribution to Customer.
8. LIMITED WARRANTIES
8.1 General. Each Party represents and warrants that: (a) it is duly organized and in good standing under the Laws of the state of its organization; and (b) it has full authority to execute and perform under this Agreement, and such performance will not breach any agreement to which the Party is bound.
8.2 INTAKT Representation. INTAKT represents and warrants to Customer that during the applicable License Term(s), INTAKT will provide access to INTAKT APPLICATIONS.
8.3 Sole Remedy. To the extent permitted by law, Customer’s sole and exclusive remedy and INTAKT’s sole liability arising out of or in connection with a breach of the representation and warranty in Section 9.2 of this Agreement is limited to, at INTAKT’s option: (a) INTAKT correcting the nonconformity within a commercially reasonable period of time; or (b) if correction is not commercially reasonable, termination of the applicable INTAKT subscription and a refund of any pre-paid unused fees for the remaining balance of the applicable License Term. The customer must notify INTAKT of a claim under Section 8.2 within thirty (30) days of the date on which the condition that gives rise to the claim first appeared.
8.4 Customer Representation. Customer represents and warrants that: (a) the Customer hardware, software, and network that Customer uses to access INTAKT APPLICATIONS will not contain any Viruses that may damage, detrimentally interfere with, surreptitiously intercept, expropriate, or make any other unauthorized transfer, alteration or use of INTAKT APPLICATIONS, adversely impact the operation or availability by any facility used to provide INTAKT APPLICATIONS, or any other computing systems, data or information of INTAKT, its hosting services provider or another third party; (b) unless otherwise instructed in writing by INTAKT, Customer will use a current, industry-standard or better Virus scanning and detection program, running up-to-date virus definitions; (c) it has the necessary consents and authorizations to provide the Customer Data to INTAKT for use as contemplated herein; and (d) that only authorized End Users shall be permitted to access INTAKT APPLICATIONS.
8.5 Customer Representation on Signatory Authority. Customer further represents and warrants that the person registering to use INTAKT APPLICATIONS has the full power and authority to enter into the Agreement and to agree to all terms and conditions contained therein.
9. WARRANTY DISCLAIMERS
9.1 Implied Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, INTAKT PROVIDES INTAKT APPLICATIONS ON AN “AS-IS” AND “AS AVAILABLE” BASIS. OTHER THAN CONTAINED IN THIS AGREEMENT, INTAKT DISCLAIMS AND MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING REPRESENTATIONS, GUARANTEES OR WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY, OR IMPLIED BY THE PROVISIONS OF ANY LAWS THAT BY THEIR TERMS CAN BE DISCLAIMED (SUCH AS THE UNIFORM COMMERCIAL CODE OR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT), OR ANY DESCRIPTION PROVIDED FOR INTAKT APPLICATIONS, OR ANY SAMPLE OR MODEL PRESENTED TO CUSTOMER. INTAKT DOES NOT GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR ACCURACY OF INTAKT APPLICATIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INTAKT SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF INTAKT’S OBLIGATIONS HEREUNDER. IF SUCH PROVISIONS CANNOT BE EXCLUDED AND DISCLAIMED, THEN THE PROVISIONS OF THIS AGREEMENT WILL CONTROL TO THE MAXIMUM EXTENT PERMITTED.
10. LIMITATION OF LIABILITY
10.1 INTAKT shall not be liable for loss, injury, or damage of any kind to any person or entity resulting from any use, condition, performance, defect, or failure in INTAKT APPLICATIONS. Customer releases and waives all claims, damages, liabilities, costs, and expenses against INTAKT, and its affiliates, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents, and representatives of each of the foregoing (“INTAKT Group”), arising out of Customer’s use of INTAKT APPLICATIONS. Without limiting the foregoing, in no event will INTAKT’s maximum liability exceed the fees paid by Customer to INTAKT for access to INTAKT APPLICATIONS over the preceding twelve (12) months for the Project giving rise to any claim or liability.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL INTAKT BE LIABLE FOR ANY LOST OR CORRUPTED DATA, LOSS OF GOODWILL, REVENUE, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING NEGLIGENCE. IF SUCH PROVISIONS CANNOT BE EXCLUDED AND DISCLAIMED, THEN THE PROVISIONS OF THIS AGREEMENT WILL CONTROL TO THE MAXIMUM EXTENT PERMITTED.
10.3 The limitations in this section apply regardless of the form or source of Claim or Loss, whether or not they may cause this Agreement or any remedy available to a Party to fail of its essential purpose, whether the Claim or Loss was foreseeable, and whether the applicable Party has been advised of the possibility of the Claim or Loss.
11.1 Duty to Indemnify. Customer shall defend, indemnify and hold INTAKT harmless from any and all Third-Party claims arising out of or related to INTAKT’s receipt, use, or processing of Customer Data provided by End Users.
12. GENERAL PROVISIONS
12.1 Equitable Relief. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, provisions on intellectual property (including ownership), license, privacy, data protection, and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
12.2 Notices. Any notice given under this Agreement must be in writing and, other than service of process, may be delivered personally or by overnight mail (e.g., FedEx, DHL, etc.) or e-mail to the e-mail provided during registration, and notices delivered personally or via overnight mail will be effective upon delivery.
12.3 Governing Law, Venue. This Agreement is governed by and construed under the laws of the State of Delaware without regard to any conflict of law rules or principles. Any action seeking to enforce any provision of, or, directly or indirectly arising out of or in any way relating to this Agreement, shall be brought exclusively in any state or federal court located in the State of Delaware, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts in any such action and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such action in any such court or that any such action brought in any such court has been brought in an inconvenient forum. United Nations Convention on Contracts for the International Sale of Goods will not apply.
12.4Waiver. Neither Party’s waiver of the breach of any provision constitutes a waiver of that provision in any other instance.
12.5 Relationship of Parties. INTAKT is an independent contractor, and nothing in this Agreement is intended to constitute an employment, partnership, joint venture, fiduciary, trust or agency relationship between the Parties, or authorize Customer or INTAKT to enter into any commitment or agreement with any Third Party that is binding on the other Party.
12.6 Assignment; Binding Effect; Subcontractors. This Agreement is personal to Customer, and neither party may assign this Agreement or any rights or duties hereunder without the advance written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement or its rights and/or duties to its affiliates or to its successor in the event of a sale of all or substantially all of its assets, voting securities, or the assets or business related to the access and use of INTAKT APPLICATIONS provided under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ respective legal representatives, and permitted transferees, successors, and assigns.
12.7 Force Majeure. A Party’s failure to perform its obligations under this Agreement, other than the payment of money, is excused to the extent that the failure is caused by an event outside its reasonable control, including an act of God, act or threat of terrorism, shortage of materials, strike or labor action, war or threat of military or significant police action, natural disaster, failure of third party suppliers, denial of service attacks and other malicious conduct, utility failures, power outages, governmental acts, orders, or restrictions, or other cause beyond its reasonable control.
12.8 Severability. If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the term and this Agreement will continue in full force and effect.
12.9 Publicity. INTAKT may publicly identify Customer as INTAKT’s customer.
12.10. Third-Party Beneficiaries. The Parties agree and acknowledge that this Agreement is not made for the benefit of any Third Party and nothing in this Agreement, whether expressed or implied, is intended to confer upon any Third Party any rights or remedies under or by reason of this Agreement, nor is anything in this Agreement intended to relieve or discharge the liability of either Party hereto, nor shall any provision hereof give any entity any right of subrogation against or action over or against either Party.
12.11 U.S. Government Licensing. For US Government end users: Customer acknowledges that INTAKT APPLICATIONS is a “Commercial Item(s),” as that term is defined at 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Customer agrees, consistent with 48 C.F.R. section 12.212 or 48 C.F.R. sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (A) only as Commercial Items; and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
12.12 Export Rules. The customer acknowledges that INTAKT APPLICATIONS may be subject to the U.S. Export Administration Regulations and other export laws and regulations, and the Customer will comply with them.
12.13 License Compliance. During the term of this Agreement and for one (1) year thereafter, Customer shall keep complete and accurate books and records relating to the use of INTAKT and any fees payable under this Agreement. INTAKT may, at its expense and no more than twice per year, appoint its own personnel or an independent third party (or both) to inspect such records to verify that use, of INTAKT APPLICATIONS, complies with the terms of this Agreement. Any verification may include an onsite audit conducted at the Customer’s relevant places of business upon 15 days prior notice, during regular business hours, and will not unreasonably interfere with the Customer’s business activities.