ORDERING AND PROVISION OF THE SERVICE
Service. Customer may access and use the InteLease subscription service offered via InteLease’s website, and related downloads, (together, “Service”), to the extent and for the term stated in the ordering document or free trial period. Customer’s use of the Service via paid subscription or free trial is subject to the Agreement.
Affiliates. Customer may allow its Affiliates (as defined below) to access and use the Service only if Customer is fully liable for its Affiliates’ use of the Service and compliance with the Agreement. “Affiliate” means an entity that controls, is controlled by, or is under common control with, a party. Customer may allow its Affiliates to purchase the Service under the terms of this ToU only if Customer informs InteLease in writing of the specific Affiliate authorized to make a purchase (“Authorized Affiliate”). If an Authorized Affiliate executes an ordering document under the terms of this ToU, that Authorized Affiliate will be (a) deemed a “Customer” for that purchase only; and (b) jointly and severally liable with Customer for its use of the Service and compliance with the Agreement.
Payment. Customer will pay the fees for the Service stated in the ordering document within 30 calendar days after receipt of InteLease’s invoice, unless otherwise stated in the ordering document. If credit card payment is available, InteLease will charge Customer’s credit card upon receipt of the credit card information and also upon renewals. Customer’s purchases are non-cancelable and payment for the Service is non-refundable, except as otherwise stated in this ToU. Customer will maintain complete and accurate billing and contact information with InteLease.
Taxes. Customer will pay or reimburse InteLease for all federal, state, and local taxes, including sales, use, gross receipts, VAT, GST, or similar transaction taxes imposed on Customer’s purchase of the Service, unless Customer provides InteLease with a valid tax exemption certificate. All taxes payable by Customer will be separately stated and exclusive of the fees. Subject to the foregoing, Customer will have no liability for taxes that are statutorily imposed on InteLease including taxes or fees measured by InteLease’s net or gross income.
Use of the Service. Only Customer-designated employees and contractors (each, a “Customer User”) are authorized to use the Service. Customer will only use the Service for lease administration purposes. Customer will use the Service solely for Customer’s internal use and will not provide access to the Service to any third party, except as otherwise permitted in the Agreement. Customer will notify InteLease immediately upon learning of any unauthorized use of the Service or any other breach of security relating to the Service. Customer will promptly provide to and maintain with InteLease accurate contact information for each Customer User. InteLease may, in its sole discretion, change, modify, upgrade or discontinue any aspect or feature of the Service in whole or in part.
Customer and Customer Users may not (i) rent, lease, loan, trade, sell, or re-sell access to the Service or any related information or data, (ii) override any security feature of the Service, (iii) use the Service to harass, abuse, or harm others, or (iv) use the Service to violate intellectual property rights of others, including patents, trademarks, trade secrets, copyrights, or other proprietary rights. Customer shall only use the Service in a manner that complies with any and all applicable laws in the jurisdictions in which Customer uses the Service.
License to InteLease. By using the Service, Customer and Customer Users, grant to InteLease a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, and make derivative works from content and data uploaded to the Service.
End User License. Title, ownership and all rights (including without limitation intellectual property rights) in and to the Service and under the underlying software, algorithms, technology, processes and know-how used to provide the Service (collectively, the “Software”), shall remain with InteLease. Customer agrees not to (i) create derivative works of the Software, (ii) use the Software for any purpose other than as described herein, (iii) reproduce the Software in a manner inconsistent with this provision or the ToU, (iv) sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to third parties, (v) alter, translate, decompile, reverse assemble or reverse engineer the Software, (vi) remove or alter any proprietary notices or marks on the Software, or (vii) attempt to do any of the foregoing, except to the extent any such prohibition is not permitted by applicable law.
The Software is provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software – Restricted Rights), as applicable.
Handling of Personal Data. If Customer uploads or otherwise provides InteLease with Personal Data (defined below) in connection with its use of the Service (“Customer Personal Data”), then InteLease, in providing the Service, processes Customer Personal Data on behalf of Customer. Customer is the controller of Customer Personal Data and InteLease will process Customer Personal Data (i) in accordance with applicable Data Protection Laws (defined in section 2.3); (ii) in compliance with the written instructions received from Customer including, as applicable, sub-processing as necessary; and (iii) only for the purpose of providing, supporting and improving the Service, using appropriate technical and organizational security measures. “Personal Data” means information about an individual that (a) can be used to identify, contact or locate a specific individual; (b) can be combined with other information that is linked to a specific individual to identify, contact or locate a specific individual; or (c) is defined as “personal data” or “personal information” by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual.
Compliance with Laws. The parties will comply with all applicable international, federal, state, provincial and local laws relating to (a) corruption practice, bribery, and acts contrary to the public administration including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq.; (b) discrimination against employees or job applicants based on race, color, religion, sex, national origin, veteran status or disability, and (c) the privacy, confidentiality, security and protection of Personal Data including the EU Data Protection Directive 95/46/EC as amended and as implemented in the various European Economic Area countries or any similar and applicable legislation enacted outside of the European Economic Area and security breach notification laws (“Data Protection Laws”).
Definition. “Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, leases, financial information, non-public Personal Data, etc.).
Exclusions. Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the Effective Date, through no fault of recipient; (d) was received by recipient from a third party without any confidentiality obligation; or (e) was independently developed by recipient without breach of this section 3.
Limited Use and Non-Disclosure. Recipient will (a) use Confidential Information solely to fulfill its obligations under the Agreement; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except (1) to Affiliates or employees, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this ToU or (2) as required by law; and (d) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, to the extent applicable, unless authorized in writing by discloser.
INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP.
All right, title and interest in and to the Service and Software and any intellectual property rights embodied therein, together with any enhancements, improvements or modifications made thereto, is and shall remain the sole and exclusive property of InteLease, whether created alone or in conjunction with any third party. Except for the rights specifically granted within this Agreement, Customer shall not obtain any rights, title or interests to Service or the Software or any intellectual property rights embodied therein, including any modifications, enhancements, improvements or other alterations made thereto, by virtue of this agreement, operation of law or otherwise.
Customer is not obligated to provide InteLease with any suggestions, enhancement requests, or other feedback about the Service or Software. However, if Customer does provide any feedback to InteLease (“Feedback”), InteLease will own such Feedback. Customer acknowledges InteLease’s need to be able to freely use any Feedback provided by Customer and to own any improvements to Service or Software made by using or incorporating such Feedback (“Improvements”). Accordingly, Customer hereby assigns to InteLease any rights Customer may have, including all intellectual property rights, in Feedback and Improvements and InteLease may exercise its ownership rights to such Feedback and Improvements and intellectual property rights subsisting therein without compensation, attribution or accounting.
Customer retains all right, title and interest in and to all the Customer Information (as defined below). InteLease will use the Customer Information solely to provide the Service under this Agreement and as otherwise specified under this Agreement. “Customer Information” means all data, information or other content entered by or collected by Customer while using the Service or through integration with other source systems or data sources maintained by Customer.
TERM AND TERMINATION
Term. This ToU is effective on the date the first ordering document is executed by Customer and InteLease (“Effective Date”) and remains in effect for the period set forth in the Ordering Document, unless earlier terminated as provided herein.
Termination and Suspension. Either party may terminate this ToU or an ordering document if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving notice of the breach. InteLease may suspend Customer’s access to the Service if Customer is in breach of the Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. If all ordering documents under this ToU have expired or been terminated, then either party may terminate this ToU for convenience by providing written notice to the other party.
Effect of Termination. Termination of this ToU or an ordering document will not relieve Customer from its obligation to pay InteLease any fees stated in an ordering document. If Customer terminates this ToU or an ordering document because of InteLease’s uncured material breach, InteLease will refund a pro-rata share of any pre-paid fees under the applicable ordering document. Customer will notify Customer Users that their access to the Service has terminated. Termination of an ordering document does not terminate this ToU; however, termination of this ToU will result in the immediate termination of all ordering documents. The provisions of this ToU that by their nature extend beyond the termination of this ToU will survive termination of this ToU.
NO WARRANTY. THE SERVICE IS PROVIDED “AS IS”. INTELEASE MAKES NO REPRESENTATION OR WARRANTY ABOUT THE SERVICE INCLUDING ANY REPRESENTATION THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, OR THAT IT WILL MEET YOUR REQUIREMENTS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, INTELEASE HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WITH RESPECT TO THE SERVICE (INCLUDING THE USE, PERFORMANCE, AND SUPPORT THEREOF), WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. INTELEASE DOES NOT MAKE ANY ASSURANCES WITH REGARD TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM THE SERVICE.
Indemnification. InteLease will defend and indemnify Customer, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) a claim that the authorized use of the Service in accordance with the Agreement infringes a third party’s US intellectual property rights; or (b) InteLease’s gross negligence or willful misconduct. Customer will defend and indemnify InteLease, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (y) a claim that any content, data or other information uploaded into InteLease’s system or otherwise provided by Customer infringes a third party’s US intellectual property rights; or (z) Customer’s gross negligence or willful misconduct.
Indemnification Procedures. Each party will notify the other in writing of any third party claim. The indemnifying party will (a) control the defense of the claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a claim. The indemnified party will (y) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (z) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.
LIMITATION OF LIABILITY
Damages Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY, INCLUDING ITS RESPECTIVE AFFILIATES, WILL BE LIABLE TO THE OTHER IN CONNECTION WITH THE AGREEMENT FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES.
Liability Cap. Neither party, including its respective Affiliates, will be liable to the other in connection with the Agreement for an amount that exceeds the total fees paid or payable to InteLease during the 12-month period before the event giving rise to the liability.
Exclusions. The limitations of liability stated above do not apply to a party’s (a) breach of confidentiality obligations, or (b) liability for fraud, gross negligence or intentional misconduct.
The Agreement is governed by the laws of the State of California and any action or proceeding related to the Agreement will be brought in a federal court in the Central District of California. Each party irrevocably submits to the jurisdiction and venue of the applicable courts. The prevailing party in any litigation may seek to recover its legal fees and costs.