Intelitrex Master Terms & Conditions

This Agreement (“Agreement”) becomes effective upon the Effective Date (see Exhibit A Definitions) of the Statement of Work (“SOW”) between Partner (identified in the SOW) and Intelitrex, LLC (“Intelitrex”). This Agreement includes Intelitrex’s affiliates and governs the relationship between the Parties.

 

1. Definitions. Definitions are as specified in Exhibit A and elsewhere in this Agreement.
2. Term. The Agreement is effective from the first SOW Effective Date and remains valid throughout the life of the SOW(s) it supports.
3. SaaS Services
   1. SAAS License.  Intelitrex grants Partner and its customer(s) a nonexclusive, personal, nontransferable license, defined by the SOW, to access and use the SAAS Service during the time period specified by the SOW.
   2. Restrictions.  Partner’s use of the SAAS Service is strictly for managing its own or its customers’ Data. The Partner is prohibited from copying, modifying, distributing, or creating derivative works of the SAAS Service or User Materials. Any attempt to sublicense, lease, or provide third-party access to the SAAS Service, without approval from Intelitrex, is forbidden. Partner must not use the SAAS Service for unauthorized purposes or in ways that violate applicable laws.
   3. Compliance:  Partner must comply with all laws.
   4. Authorized Users.   Partner may add or delete Authorized Users as per Intelitrex’s procedures.
4. Support
   1. Support Services. Intelitrex provides account and product management support from 9:00am to 5:00pm Eastern time, Monday through Friday, excluding the following holidays. Partner is responsible for its own support services to its own clients.
      • New Year’s Day
      • Memorial Day
      • Independence Day
      • Labor Day
      • Thanksgiving Day
      • Day after Thanksgiving
      • Christmas Eve
      • Christmas Day
   2. Scheduled Maintenance. Intelitrex reserves the right to take down applicable servers hosting the SAAS Service to conduct routine maintenance checks (“Scheduled Maintenance”) or emergency maintenance (“Emergency Maintenance”). Intelitrex will perform Scheduled Maintenance outside of regular business hours. Intelitrex will not be responsible for any damages or costs incurred by Partner, if any, for Scheduled Maintenance or Emergency Maintenance.
   3. Platform Availability.  Intelitrex will use commercially reasonable efforts to ensure that the SaaS Service maintains a Service Availability level of 99.9%, excluding time in Maintenance, where “Services Availability” relates to the core application’s availability as service from Intelitrex-hosted environments for data ingestion, alerting, and portal access. The Service will be deemed available as long as data ingestion services are able to accept incoming monitoring data, notification services are able to generate and attempt delivery of notifications, and Partner’s authorized users are able to login to their portal interface. Services Availability is measured in minutes as a percentage of a month that the Service is available.
5. Charges and Payment. Fees are as agreed in the SOW. Invoices are due within 30 days, with late payments incurring the lesser of a 1.5% monthly fee or the maximum allowed by law. Any collections or legal costs incurred as a result of late fees will be reimbursed by Partner to Intelitrex.  If payment is past due, Intelitrex may at its sole discretion elect to suspend Service, which will not relieve Partner of any of its obligations under this Agreement.
6. Relationship Between the Parties. Intelitrex is an independent contractor. Employees and agents of Intelitrex are not Partner’s employees or agents. Intelitrex is responsible only for its legal obligations towards its employees.
7. Marketing and Branding. Partner may alter/re-brand/white label marketing materials only with Intelitrex’s approval.
8. Termination
   1. Termination.  Termination conditions are as defined by the SOW.
   2. Survival.  All provisions of this Agreement survive termination except for “Relationship Between the Parties”.
   3. Effect of Termination.  Upon termination, Partner must return any related materials to Intelitrex.  All licenses will be revoked, and any proprietary Partner information held by Intelitrex will immediately be returned or disposed of.
   4. Continuation Assistance.  Should Partner request a continuation of the Services and should Intelitrex agree, a new SOW will be executed by both Parties to govern the terms of continuation.
9. Proprietary Information
   1. Recipient agrees to keep all Proprietary Information confidential, disclosing only to authorized persons after having received approval from Intelitrex.
   2. The confidentiality obligation does not apply to information already known to the Recipient by way of having received it from a third party without a confidentiality obligation, or be it publicly available, independently developed, or legally required to be disclosed.
   3. Recipient may make copies of Proprietary Information only after having received approval from Intelitrex.
   4. Recipient shall not copy, reverse engineer, or decompile the software.
   5. No rights or licenses in the disclosing party’s Proprietary Information are granted, with such information remaining the property of the disclosing party. Upon request or termination, Recipient must return or destroy all Proprietary Information.
   6. Obligations regarding trade secrets remain as long as they are legally considered trade secrets. Obligations for Confidential Information last for two years after disclosure.
   7. The disclosing party may seek legal remedies to protect its Proprietary Information, and both Parties waive any bond requirements for such legal actions.
10. Conflict with SOW/Exhibits. In case of conflict, terms of the SOW prevail.
11. Partner Responsibilities
    1. Registration and User IDs: Partner must register each Authorized User with Intelitrex, ensuring the use of unique User IDs and maintaining security precautions to prevent unauthorized access.  If any Authorized User becomes no longer authorized, for any reason, Partner will immediately notify Intelitrex.
    2. Responsibility for Users: Partner is accountable for all actions by Authorized Users and other Users related to the Service, bearing liability for any breaches of this Agreement.
    3. Systems: Partner must maintain and is solely responsible for necessary equipment and internet access required for using the Service.
    4. Authorization and Non-infringement: Partner is responsible for all necessary authorizations to input Data into and integrate systems with the SAAS Service, ensuring use complies with all relevant rights and laws. Intelitrex is not liable for the Data’s accuracy or completeness and has no duty to validate it. Data transmission to Intelitrex requires a secure network connection, with Partner providing and bearing the cost for all required transmission equipment (unless otherwise agreed) and conforming to Intelitrex’s specifications. Intelitrex is not liable for any Data or Output loss or delay during transmission, provided it’s not at Intelitrex’s fault.
    5. No Interference with Service Operations: Partner must not undertake actions that disrupt the Service’s functionality, that interfere with security-related functions, or that impose unreasonable demands on its infrastructure.
    6. Partner Review and Responsibility: Partner bears sole responsibility for the accuracy, completeness, and legality of the services it provides using the SAAS Service, with no liability on Intelitrex for the data or output generated.
12. Taxes. Partner covers all applicable taxes and levies related to the services provided by Intelitrex.
13. Non-Solicitation of Employees. Partner agrees not to solicit Intelitrex’s employees, agents, subcontractors, or contractors during and for two years after the Agreement term.
14. Limitations; Disclaimer
    1. Warranties.  Intelitrex ensures its personnel’s competency aligns with industry standards. If services fail to meet these standards, Intelitrex will either re-perform the services or refund the fees paid if, in Intelitrex’s judgment, material failure cannot be remedied otherwise. Claims must be made within ten (10) days of service acceptance. Except as stated, Intelitrex disclaims all other warranties, including implied warranties of merchantability and fitness for a particular purpose.
    2. Service Limitations.  The Service may be temporarily unavailable due to required maintenance, telecommunications interruptions, or other disruptions, which may occur without notice. Intelitrex will not be responsible for any damages that Partner may suffer arising out of use, or inability to use, the Service during such times. Intelitrex will not be liable for unauthorized access to or alteration, theft or destruction of Partner’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method. Partner acknowledges the responsibility to validate for correctness of all Output and to protect Data from loss by maintaining back-ups of all. Partner hereby waives any damages resulting from the above conditions.
    3. Warranty Disclaimer.  Except as explicitly stated, Intelitrex disclaims all warranties related to the Service provided. Partner assumes responsibility for selecting services, hardware, and software to meet its needs and for the results obtained from their use.
    4. Limitation of Liability.   To the extent permitted by applicable law, except for: (a) damages arising from a breach of section 3; and (b) damages arising from the fraud, gross negligence, or willful misconduct of a party, in no event will partner or Intelitrex (including Intelitrex’s subsidiaries, its parent and subsidiaries of its parent, its service providers and licensors, and the employees, officers, directors and agents thereof) be liable for any consequential, indirect, special, incidental, exemplary or punitive damages under this agreement or in connection with any services, hardware, or software provided by Intelitrex hereunder, including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss arising out of the use or inability to use the services, hardware, software, data or any output, even if such party has been advised of the possibility of such damages and even if available remedies are found to have failed of their essential purpose. To the extent permitted by applicable law, the total liability, if any, of Intelitrex (including its subsidiaries, its parent and subsidiaries of its parent, its service providers and licensors, and the employees, officers, directors and agents thereof) in the aggregate over the term of this agreement for all claims, causes of action or liability whether sounding in contract, tort, or otherwise arising under or in any way related to this agreement and/or the services, hardware, or software provided hereunder (collectively, “claims”), shall be limited to the lesser of: (a) partner’s direct damages, actually incurred, or (b) the total fees paid by partner to Intelitrex in the most recent six (6) month period. Notwithstanding the foregoing, Intelitrex’s sole obligation in the event of an error by Intelitrex in the performance of any services under this agreement shall be limited to reprocessing available data or reperforming the services. Intelitrex (including its subsidiaries, its parent and subsidiaries of its parent, its service providers and licensors, and the employees, officers, directors and agents thereof) shall have no liability, express or implied, whether arising under contract, tort, or otherwise, for any claim or demand: (a) resulting directly or indirectly from partner’s internal operations, equipment, systems, or software owned or licensed by partner; or (b) by third parties, even if Intelitrex was advised of the possibility of such claims or demands, except as expressly provided otherwise herein. Partner acknowledges that Intelitrex has set its fees, and entered into this agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that for purposes of this agreement, each party’s defense and indemnification obligations herein are deemed direct damages of the other party.
15. Ownership
    1. SAAS Service: Intelitrex retains exclusive ownership of the SAAS Service, related materials, and intellectual property. Partner acknowledges that these are valuable proprietary products and trade secrets of Intelitrex.
    2. Aggregated Information: Intelitrex owns all Output and anonymized information derived from Partner’s use of the Services. Partner grants Intelitrex all rights in such information.
    3. Data: Partner grants Intelitrex a license to use, reproduce, and display Data for fulfilling its obligations and developing new features. Partner retains ownership of its Data and Proprietary Information.
    4. Feedback: Partner grants Intelitrex ownership of any feedback related to the SAAS Service or other products/services. Intelitrex may use this feedback without restrictions or royalties.
16. Indemnification
    1. Indemnification of Partner by Intelitrex. Subject to the limitations of liability in this Agreement, Intelitrex shall indemnify and hold harmless Partner, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Partner against, pay any final judgments awarded against Partner, and pay Partner’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on Intelitrex’s alleged infringement of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party under the laws of the United States arising out of the Software, unless and except to the extent that such infringement is caused by (i) modification of the Software by anyone other than Intelitrex, (ii) Intelitrex’s compliance with Partner’s unique specification or instructions, (iii) Intelitrex’s use of trademarks, Data, or other materials supplied by Partner, (iv) use of any Software in connection or in combination with equipment, devices, or software not provided by Intelitrex (but only to the extent that such Software alone would not have infringed); (v) the use of any Software other than as permitted under this Agreement or in a manner for which it was not intended; or (vi) use of other than the most current release or version of any Software (if such claim would have been prevented by the use of such release or version).
    2. Modification of Infringing Materials. If Software becomes the subject of an infringement claim under Section 16.a, or in Intelitrex’s opinion is likely to become the subject of such a claim, then Intelitrex may, at its option and in its sole discretion, (i) replace or modify the Software to make it non-infringing or (ii) procure the right to continue using the Software. If neither alternative is, Intelitrex shall have the right to cease the use of the Software and terminate the applicable SAAS Service and refund a pro rata portion of any fees paid for such SAAS Service. The foregoing obligations will be Partner’s sole and exclusive remedy, and Intelitrex’s sole and exclusive liability for, for any claims of infringement.
    3. Indemnification of Intelitrex by Partner. Partner shall indemnify and hold harmless Intelitrex, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Intelitrex against, pay any final judgments awarded against Intelitrex, and pay all of Partner’s costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on (i) Partner’s improper or misuse of the Services or Software (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (ii) Intelitrex’s compliance with Partner’s instructions; (iii) Intelitrex’s use of trademarks, Data or other materials supplied by Partner, (iv) any breach or alleged breach by Partner of this Agreement, or (v) the conduct of any business in connection with use of the Services or Software.
    4. Indemnification Procedures. If any third party makes a claim covered by this Agreement against an indemnitee with respect to which such indemnitee intends to seek indemnification under this section, such indemnitee shall give notice of such claim to the indemnifying Party, including a brief description of the amount and basis therefor, if known. Upon giving such notice, the indemnifying Party shall be obligated to defend such indemnitee against such claim, and shall be entitled to assume control of the defense of the claim with counsel chosen by the indemnifying Party, satisfactory to the indemnitee. The indemnitee shall cooperate fully with and assist the indemnifying Party in its defense against such claim in all respects. The indemnifying Party shall keep the indemnitee fully apprised at all times as to the status of the defense. Notwithstanding the foregoing, the indemnitee shall have the right to employ its own separate counsel in any such action, but the fees and expenses of such counsel shall be at the expense of the indemnitee. Neither the indemnifying Party nor any indemnitee shall be liable for any settlement of action or claim effected without its consent. Notwithstanding the foregoing, the indemnitee shall retain, assume, or reassume sole control over all expenses relating to every aspect of the defense that it believes is not the subject of the indemnification provided for in this Section 6. Until both (i) the indemnitee receives notice from indemnifying Party that it will defend, and (ii) the indemnifying Party assumes such defense, the indemnitee may, at any time after ten (10) days from the date notice of claim is given to the indemnifying Party by the indemnitee, resist or otherwise defend the claim or, after consultation with and consent of the indemnifying Party, settle or otherwise compromise or pay the claim. The indemnitee shall keep the indemnifying Party fully apprised at all times as to the status of the defense.
17. Governing Law. The Agreement is governed by the laws of the State of Georgia.
18. Severability. If any provision is invalid or unenforceable, it only affects that provision, not the validity of the entire Agreement.
19. Entire Agreement. This Agreement, including the SOW and exhibits, constitutes the entire agreement between the Parties.
20. Force Majeure.  Neither Party will be liable for delays or failures in performance arising from acts beyond their control, including natural disasters, wars, government actions, pandemics, or disruptions in essential services. Upon such an event, the affected Party must promptly inform the other, detailing the impact and estimated duration of delay. Efforts should be made to minimize disruption and resume obligations promptly. If the Force Majeure Event persists beyond sixty (60) days, either Party may terminate the Agreement without liability. Financial hardships or market changes do not constitute Force Majeure.
21. Waiver. Failure to enforce any provision does not waive the right to enforce it later.
22. Assignment. Partner may not assign rights or delegate duties under this Agreement without Intelitrex’s consent.
23. Export Control. Partner must comply with all U.S. export control laws and regulations.
24. Drafting; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party hereto by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision. The headings contained in this Agreement are for reference purposes only. They are not included for substantive purposes and shall not affect the meaning or interpretation of this Agreement.

 

Exhibit A

 

 Definitions

 

1. “Affiliate” means any entity controlled by, under common control with, or controlling Recipient through voting stock or its board of directors or other supervisory board.
2. “Authorized Person” means Recipient’s or its Affiliate’s employees, officers, legal counsel, members of Recipient’s board of directors or supervisory board, and independent contractors, each of whom Recipient requires to comply with the obligations of Recipient under this Agreement.
3. “Authorized User” means an individual employee of Partner or Partner’s client registered and identified by Partner or Partner’s client, as applicable, by name to receive a User ID in order to access the SAAS Service online.
4. “Confidential Information” means information, other than Trade Secrets, that is of value to its Disclosing Party (or a third party providing such information to Disclosing Party) and is treated as confidential, including all confidential, proprietary or trade secret information, including discoveries, ideas, concepts, know-how, techniques, processes, procedures, designs, specifications, strategic information, proposals, requests for proposals, proposed products, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, marketing plans, Partner information (including, Internet activities, history and/or patterns of use), employee personal information, health or financial information, authentication credentials, and other technical, financial or business information, whether disclosed in writing, orally, visually, in tangible or intangible form, including in electronic mail or by other electronic communication.
5. “Data” means all documents, information, content, records, files, and data entered into, received, processed, or stored by or for Partner using the SAAS Service. Data may include Personally Identifiable Information (“PII”).
6. “Disclosing Party” means the Party disclosing Proprietary Information to the other Party to this Agreement.
7. “Effective Date” is defined in an accompanying SOW, usually but not exclusively referring to the date of mutual execution of the SOW.
8. “Hardware” means all tangible products and equipment used to operate software and/or all tangible products and equipment provided by Intelitrex, including the physical components of a computer system or network such as, switches, hard drives, and monitors.
9. “Output” means all documents, information, records, and other output of the Services.
10. “Partner” means the entity contracting with and receiving Services from Intelitrex.
11. “PII” means any information relating to an identified or identifiable individual (such as name, postal address, email address, telephone number, date of birth, Social Security number (or its equivalent), driver’s license number, account number, personal identification number, health or medical information, or any other unique identifier or one or more factors specific to the individual’s physical, physiological, mental, economic or social identity), whether such data is in individual or aggregate form and regardless of the media in which it is contained.
12. “Proprietary Information” means Trade Secrets and Confidential Information that is of value to its Disclosing Party (or of a third party providing such information to the Disclosing Party).
13. “Recipient” means the Party who receives Proprietary Information under this Agreement, including Authorized Persons.
14. “SAAS Service” means access and use of Software on a software as a service basis (SaaS) via the Internet as identified in a SOW. Partner will not receive a copy of such Software.
15. “Services” means the SAAS Service, Support Services, training, and other services provided by Intelitrex as set forth in a SOW.
16. “Software” is Intelitrex’s monitoring software provided on SaaS basis to make available the SAAS Service and includes any APIs and other software Intelitrex directly provides or makes available to Partner in the use of the SAAS Service.
17. “SOW” means a Statement of Work executed by Intelitrex and Partner or otherwise accepted by Intelitrex in a legally binding manner acceptable to Intelitrex which sets forth the necessary information relating to the Services that Partner will receive and the amounts payable to Intelitrex for such Services (the “Fees”). SOWs shall be in a form substantially similar to Intelitrex’s standard SOW. Partner may not use any Partner standard form of SOW which may contain pre-printed or other terms and conditions. The Parties agree that such terms and conditions shall have no effect.
18. “Support Services” will mean those support and maintenance services provided by Intelitrex to Partner under this Agreement and as set forth in Section 4.a.
19. “Trade Secrets” means information constituting a trade secret within the meaning of Section 10-1-761(4) of the Georgia Trade Secrets Act of 1990, as amended.
20. “User ID” means a unique user identification assigned to an authorized individual Authorized User as set forth in 11.a.
21. “User Materials” means any on-line help files or written instruction manuals regarding the use of the SAAS Service provided to Partner by Intelitrex, other than any such materials made publicly available by Intelitrex on its websites.