1.1. “Acceptance” has the meaning set forth in Section 2.1.
1.2. “Access Date” has the meaning set forth in Section 2.1.
1.3. “Authorized Users” means Client’s employees, students, soldiers, agents, representatives, consultants, and contractors that Client authorizes to access and use the Service and who agree to the associated Terms of Service (the “Terms of Service”) prior to accessing or using the Service.
1.4. “Client Data” has the meaning set forth in Section 10.
1.5. “Confidential Information” means (a) the terms and conditions of this Agreement or any other agreement executed between the Parties; (b) all nonpublic information concerning the disclosing Party’s business, technology, products, services, internal structure, and strategies, specifically including, without limitation, the Service, Documentation, Intellectual Property, end-user materials, work product, proposals, designs, concepts, methodologies, inventions, source code, object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information, business information, business plans, or licensing policies; (c) any other information clearly labeled by the disclosing Party in writing as “confidential” or “proprietary” prior to its disclosure; and (d) all such information that, by its nature, a reasonable party would consider to be confidential or proprietary. The following information will not be considered Confidential Information: (i) information which was in the public domain prior to its disclosure; (ii) information which becomes part of the public domain by any means other than through violation of this Agreement; (iii) information independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information; or (iv) information received from a third party not under any obligations of confidentiality.
1.6. “Documentation” means the instructions and guidelines that may accompany the Service as may be provided or made available online or in writing by Intrinsic Institute to Client, which may be amended from time to time by Intrinsic Institute.
1.7. “Fees” means those License Fees and other fees set forth on the applicable Order Form, incorporated herein by this reference.
1.8. “Intellectual Property” means all intangible legal rights or interests evidenced by or embodied in: (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright ability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, in each case, including all goodwill pertaining thereto and on a worldwide basis.
1.9. “License” has the meaning set forth in Section 2.1.
1.10. “Order Form” has the meaning set forth in Section 2.7.
1.11. “Platform” means the cloud services maintained by Intrinsic Institute’s third party platform provider for the Service. Client’s obligations regarding the Platform are further described in this Agreement.
1.12. “Service” has the meaning set forth on the cover page.
1.13. “Terminals” means computer hardware capable of running an Internet browser, and will specifically include desktop computers, laptops, mobile phones, smart phones, and tablet computers.
2.1. Grant of Access. Provided that Client has paid and is current on all Fees owed to Intrinsic Institute pursuant to the terms and conditions of this Agreement, Intrinsic Institute grants to Client and its Authorized Users a limited, non-exclusive, non-transferable, and non-sublicensable term license to access and use the Service during the Term (the “License”). This Agreement does not permit access by persons who are not Authorized Users. “Acceptance” of the Service has occurred upon Intrinsic Institute making the Service available for access and use by Client (“Access Date”). Client understands and acknowledges that the Service is hosted on the Platform and is made accessible to Client via the internet. All rights not specifically granted to Client hereunder are reserved by Intrinsic Institute. Nothing herein will prevent Intrinsic Institute from promoting, providing, licensing, or sublicensing the Service or providing any services to other parties. The Service may include or incorporate applications or content developed or provided by third parties, including, but not limited to, third party APIs, third party widgets and third party tools. Client’s and its Authorized Users’ use of such third party applications and content shall be subject to the terms and conditions of any third party agreements associated with such applications or content, and Client and its Authorized Users are solely responsible for their compliance with such terms and conditions. Additionally, the Service may contain open source software.
2.2. Documentation. Subject to the terms and conditions of this Agreement, Intrinsic Institute grants to Client a limited, non-exclusive, non-transferable, and non-sublicensable right and license to use and make copies of any Documentation it provides to Client for Client’s internal use only, for archival purposes, and for training and education of Client’s Authorized Users, provided that all proprietary notices of Intrinsic Institute and its licensors, if any, are reproduced and retained.
2.3. Prohibitions. Use of and access to the Service is permitted only by Client and its Authorized Users. Under no circumstances may Client modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Service, modify or adapt the Service in any way, use the Service to create a derivative work, or grant any other person or entity the right or access to do so, without Intrinsic Institute’s advance written consent. Except as expressly authorized by this Agreement, Client will not modify, copy, duplicate, reproduce, unbundle, sublicense, sell, assign, transfer, display, distribute, lend, rent, or lease the Service or any portion thereof to any third party. All proprietary and/or other notices of Intrinsic Institute or its licensors, if any, will be provided and maintained on the Service at all times.
2.4. Ownership. Access to the Service is licensed on a limited term and subscription basis, and is not sold. Client will not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Service or Platform, aside from the limited License granted herein and any Client Data or Confidential Information provided by Client, and Client hereby expressly disclaims any other rights therein. Intrinsic Institute will have and retain all right, title, and interest in and to the Service and all Intellectual Property comprising the Service, as well as any modifications or enhancements made thereto, with the sole exception of any Client Data or Confidential Information provided by Client. All work product, customizations, improvements, and/or enhancements to the Service performed by Intrinsic Institute for Client or otherwise upon Client’s request pursuant to this Agreement, including as identified on any Order Form or Addendum executed by the parties pursuant to this Agreement (collectively, “Work Product”), shall be owned exclusively by Intrinsic Institute. If, by operation of law or otherwise, any Work Product is not owned exclusively by Intrinsic Institute immediately upon creation thereof, Client agrees to assign, and hereby irrevocably assigns, to Intrinsic Institute exclusive ownership of such Work Product and expressly disclaims any ownership rights thereto. Client further hereby irrevocably assigns to Intrinsic Institute ownership of any and all suggestions, modifications, enhancements, improvements, alterations, changes, or revisions to the Service made or suggested by Client or its Authorized Users (“Feedback”). Client will cooperate with Intrinsic Institute to confirm and/or execute such assignments and Intrinsic Institute’s ownership of Work Product and/or Feedback. Client acknowledges that Intrinsic Institute has expended a significant amount of time and energy in the creation of the Service and Client will take no action that may detrimentally affects the Service. Client will not allow any third party to use, access or view the Service without Intrinsic Institute’s prior written consent.
2.5. Restrictions. Unless otherwise agreed to in this Agreement, Client agrees it will not: (a) sell, lease, sublease, license, or sublicense the Service or any portion thereof; (b) provide, transmit, disclose, divulge, or make available to, or permit use of the Service by, any third party or entity or machine; (c) use the Service in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party; (d) install, provide as a service, bundle, disclose, copy, use, or make the Service available for use, or otherwise utilize any or all of the Service in any manner that is not explicitly authorized in this Agreement; (e) publish, post, upload, or otherwise transmit any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (f) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of Intrinsic Institute, the Service or the Platform; or (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that access the Service or Platform in a manner that sends more request messages to the Service or Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser.
2.6. Notification. Client will promptly notify Intrinsic Institute of any determination, discovery, or notification that any person or entity is or may be misusing or infringing the Service. Client will not take any legal action relating to the protection or defense of the Service without Intrinsic Institute’s prior written approval.
2.7. Order Forms and Special Terms. Client will order the Service only pursuant to an order form executed by the Parties under this Agreement (each an “Order Form”). Each Order Form will include, at a minimum, the terms for Client’s use and access of the Service, the Fees, and any additional services. Except as otherwise provided on the Order Form, each Order Form will be subject to the terms and conditions of this Agreement. To the extent any additional or special terms apply to the Service, such terms will be set out in the Order Form.
2.8. Audit. Intrinsic Institute will monitor the number of Authorized Users accessing and using the Service. In the event the number of Authorized Users exceeds the number of users Client purchased or is otherwise provided pursuant to the applicable Order Form and this Agreement, Intrinsic Institute shall invoice Client for the overage in excess of the Service License and usage rights set forth in the applicable Order Form, and Client shall pay such invoice in accordance with Section 3.
2.9. Platform. Client acknowledges that the Service is made available via the Internet and is hosted on the Platform. Client acknowledges that Intrinsic Institute is not responsible and will not be liable in any way for hosting the Service under this Agreement, and any Client data loss, downtime or periodic unavailability of the Platform due to system maintenance, upgrades, or any other reason is outside Intrinsic Institute’s control.
3.1. Fees and Expenses. The Fees are set forth in the applicable Order Form and are payable as provided in this Agreement and the applicable Order Form. All Fees are nonrefundable and non-cancellable, except as expressly provided in this Agreement, and are exclusive of sales, use or similar taxes.
3.2. Taxes. Client agrees to pay all taxes or levies of whatever nature arising out of or in connection with this Agreement, including the sale, delivery, ownership, or use of the Service (including VAT) or any other activities hereunder, excluding taxes based on Intrinsic Institute’s net income. Client will reimburse and indemnify Intrinsic Institute in full for any of the foregoing taxes or levies that are paid by Intrinsic Institute for which Client is responsible hereunder. If Client is required by law to withhold or deduct any amount from the Fees, Client will increase the Fees paid to Intrinsic Institute such that Intrinsic Institute receives the full amount of Fees specified under this Agreement. If Client asserts that any transaction under this Agreement is tax-exempt, Client will provide Intrinsic Institute a tax exemption certificate acceptable to the applicable taxing authority.
3.3. Payment Timeframe. Unless otherwise set forth in the applicable Order Form, invoices for the Service are due and payable by Client within thirty (30) calendar days after Client’s receipt of an invoice. Any invoiced amounts not paid when due will accrue interest at the lower of 1.5% per month for each month (or fraction thereof) that Intrinsic Institute does not receive payment, or the maximum percentage allowed by applicable law. In the event that payment owed under this Agreement is not made when due, Client will be in material default under the terms of this Agreement, and Intrinsic Institute may invoke any or all available remedies, including the right to suspend the Service and its other performance obligations under this Agreement. Client will reimburse Intrinsic Institute for all costs and expenses incurred by Intrinsic Institute arising from Intrinsic Institute’s collection of amounts due under this Agreement, including, without limitation, reasonable attorneys’ fees. All Fees will be payable in United States Dollars. Intrinsic Institute’s acceptance of payment of Fees from a third party will not provide such third party any rights in the Service or under this Agreement, and such acceptance will be for Client’s convenience only.
4.1. Client Obligations. Client will have the sole responsibility for acquiring, installing, and maintaining its own technology environment and equipment necessary to properly access, operate, and utilize the Service, including, without limitation: Internet access, LANs and WANs; for any communications or other costs incurred in operating, accessing and using the Service; and for any other expenses relating to the foregoing. Except as set forth in any applicable Order Form, Client will be responsible for selecting and training adequate personnel with the requisite experience necessary to use the Service. Client will be solely responsible for the security and confidentiality of any usernames or passwords granted to Client or its Authorized Users to access the Service, and will limit disclosure of such usernames and passwords to its Authorized Users. Client will be solely responsible for any authorized or unauthorized access to the Service using such usernames and passwords, and any actions taken thereunder. Client will limit use of access to the Service solely to those of its Authorized Users whose duties require such use and access. Client will undertake best efforts to ensure that Intrinsic Institute’s Confidential Information and the Intrinsic Institute Intellectual Property are kept secure. Client will use commercially reasonable efforts to ensure that all Authorized Users afforded access to the Service and any other information and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination, or disclosure. Client will have the sole responsibility for maintaining the privacy and security of all Client Data. Client agrees that it is fully liable for the acts and omissions of all Authorized Users that use and access the Service. Client will cooperate with Intrinsic Institute in all matters relating to the Service and appoint a Client employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contact Manager”). Client will provide access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Intrinsic Institute, for the purposes of performing any Professional Services as ordered by the Client pursuant to an Order Form and Addendum A to this Agreement, if applicable. Client will respond promptly to any request from Intrinsic Institute to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Intrinsic Institute to provide any such Professional Services, if applicable.
4.2. Regulatory Compliance. Client assumes sole and complete responsibility for ensuring that its Authorized Users’ use of the Service and all related Client policies and procedures are in compliance with the Terms of Service and all applicable federal, state and local laws and regulations, including, without limitation, any federal, state or local privacy or information security laws or regulations.
4.3. Access, Availability, and Changes to the Service. Client acknowledges that Intrinsic Institute has the right, in its sole discretion, to determine the method, details, and means of providing the Service hereunder, and to change or discontinue the content or technical specifications of any aspect of the Service at any time, including the third party Platform provider designed for the Service. Intrinsic Institute does not warrant or provide any guarantee regarding the availability of the Service via the Platform. Client further accepts that the Platform may be periodically unavailable for system maintenance, upgrades, or other reasons, on terms completely outside Intrinsic Institute’s control.
4.4. Intrinsic Institute Support and Maintenance Limitations. During the Term and provided Client has paid all applicable Fees in accordance with the applicable Order Form (including the Monthly License Fees), Intrinsic Institute will use reasonable efforts to correct verifiable and reproducible errors in the Service reported to Intrinsic Institute by Client. As used in this Agreement, an “error” is any programming error or malfunction that materially interferes with or prevents Client’s ability to use and access the Service. Errors do not include Platform-controlled technical issues, including but not limited to downtime and maintenance periods as described herein. Intrinsic Institute may correct errors by making revisions to programming (which may take the form of a patch or upgrade) or by providing reasonable “work-around” solutions. Intrinsic Institute reserves the right to modify any Documentation if such Documentation, in Intrinsic Institute’s sole determination, incorrectly describes the Service functions, and Intrinsic Institute may do so in order to resolve an error. During the Term and provided Client has paid all applicable Fees in accordance with the applicable Order Form (including the Monthly License Fees), Intrinsic Institute agrees to provide Client with all releases and enhancements to the Service that Intrinsic Institute generally releases to Intrinsic Institute’s customers that operate in the same software environment as Client. Otherwise, Intrinsic Institute retains sole discretion to determine whether and when to make new releases or enhancements to the Service available, and the terms on which they will be made available to Client. Standard support services provided under this Agreement do not include on-site consultation, systems administration, facilities management, or customized programming support to resolve problems resulting from Client equipment used to access the Service, resulting from modifications to the Service not made or authorized by Intrinsic Institute, or resulting from the combination or interfacing of the Service with other programming or equipment if the combination or interface has not been made by or approved in writing by Intrinsic Institute. In addition, support is not provided under this Agreement for third party software, hardware, or networks. Any time spent by Intrinsic Institute attempting to provide such additional support services will be charged to Client at Intrinsic Institute’s then-standard hourly rates, in accordance with the payment terms set forth in the applicable Order Form. To ensure appropriate performance and security of the Service, Intrinsic Institute will routinely perform maintenance on a regularly scheduled basis. This may require the Service, or a portion thereof, to be suspended during the maintenance period. Intrinsic Institute will use reasonable efforts to notify Client in advance of any scheduled maintenance that may adversely affect Client’s access to the Service. Under certain circumstances, Intrinsic Institute may need to perform emergency maintenance, including, without limitation, a security patch installation or hardware replacement. Intrinsic Institute will not be able to provide Client with advance notice in case of emergency maintenance.
4.5. Support Hours. Intrinsic Institute will provide general technical support to Client for the Service through its “Support Hotline,” available via email at email@example.com or via phone at 319-321-4108, from 8:30a.m. to 5:00p.m. Central Time (CT), Monday through Friday excluding all federal holidays. The Support Hotline may be contacted by Client at any time, but Intrinsic Institute does not guarantee a response until the next business day.
4.6. Security. Intrinsic Institute has established and will use reasonably adequate security programs and procedures relating to the Service and Client Data. Each of Client and Intrinsic Institute agrees to use its reasonable efforts to prevent unauthorized persons from having access to the Service or any equipment providing the Service. Each Party agrees to notify the other Party promptly upon becoming aware of any unauthorized access or use of the Service or Client Data by any third party. CLIENT UNDERSTANDS AND AGREES THAT THE SERVICE AND PLATFORM ARE HOSTED BY AND PROVIDED THROUGH THIRD PARTY SERVICE PROVIDERS AND THAT INTRINSIC INSTITUTE WILL HAVE NO LIABILITY TO CLIENT OR ANY OTHER THIRD PARTY FOR THE ACTS OR OMISSIONS OF ITS THIRD PARTY VENDORS.
5.1. Acceptable Use. Client assumes sole and complete responsibility for ensuring that the Service is used only by Authorized Users, that each Authorized User has been adequately trained, and that Authorized Users do not make unauthorized use of the Service. Unauthorized use includes, without limitation: (a) use of the Service to access websites other than the Platform; (b) attempts to gain access to data about individuals other than for legitimate business purposes; (c) alteration or modification of individual data or of any Service configuration values from the originally delivered values; (d) accessing the Service through any technology or means other than through the user account information provided to Client by Intrinsic Institute; and (e) any use of the Service or the information contained therein in violation of any applicable law or regulation. Additionally, Client will use commercially reasonable efforts to ensure that Authorized Users comply with the following requirements, and will be responsible for any noncompliance by Authorized Users: (i) Authorized Users must not enter or transmit any information using the Service that is unlawful, false, offensive, defamatory, or infringes the rights of any person; (ii) Authorized Users must not use or access (or otherwise attempt to use or access) all or any portion of the Service in a way that disrupts the access to or use of the Service by others, including conducting or otherwise participating in any distributed denial-of-service (“DDoS”) attack or similar malicious attack intended or designed to artificially delay, disrupt or otherwise adversely affect the Service or any other user’s access to or use of the Service; and (iii) Authorized Users must not use any Client Data or other information obtained through the Service except for the purpose for which the information was provided, and must not attempt to use the Service to gain unauthorized access to information.
5.2. Suitability. Client will be responsible for determining the suitability of the Service for its business operations and whether the Service will achieve the results Client desires. The Service is provided as a tool for Client to use as Client sees fit for its employees, students, soldiers, customers, and overall business operations. As with manually-kept records, records kept using the Service may contain errors, whether resulting from incorrect input or recording of information, Service errors, or other causes. Client is solely responsible for understanding the limitations of the Service. Client will be responsible for ensuring the accuracy of any data input into the Service (including Client Data), ensuring and confirming the accuracy of any output and results created by the Service prior to use or dissemination, and undertaking procedures to test, identify and correct any errors or omissions relating to the foregoing.
6.1. Term. The initial term (the "Initial Term") of this Agreement shall be one (1) year from the Effective Date set forth on the cover page, unless terminated earlier pursuant to Section 6.2. This Agreement shall automatically renew for periods of one (1) year (each a "Renewal Term"); provided, however, this Agreement shall not renew if a Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Term. The Initial Term, together with any Renewal Term, collectively, shall be the "Term". Notwithstanding the foregoing, the Term of this Agreement shall not expire if a term of an Order Form executed under this Agreement ends at a later date and, in all such cases, the Term of this Agreement shall extend to such later date. Unless otherwise stated therein, each Order Form executed under this Agreement shall have an initial term (the "Order Form Initial Term") of one (1) year from the Effective Date of such Order Form, unless terminated earlier pursuant to Section 6.2. Unless otherwise stated therein, each such Order Form shall automatically renew for periods of one (1) year (each an "Order Form Renewal Term,"); provided, however, an Order Form shall not renew if a Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the end of the Order Form Initial Term or then-current Order Form Renewal Term. MindVue may modify the Fees for each Order Form Renewal Term by written notice to Client at least ninety (90) days prior to the end of the Order Form Initial Term or then-current Order Form Renewal Term.
6.2. Termination. This Agreement, all Order Forms and Addendums, and Client’s License and rights to use and access the Service will terminate immediately and without action from Intrinsic Institute in the event: (a) the Term expires; (b) Client materially breaches the terms and conditions of this Agreement; (c) Intrinsic Institute gives Client notice of additional terms and conditions that will govern use of or access to the Service and Client does not accept the additional terms and conditions; (d) Intrinsic Institute ceases providing access to the Service to its clients generally; or (e) Client is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. Client may terminate this Agreement if Intrinsic Institute materially breaches a term or condition of this Agreement and Intrinsic Institute does not cure such material breach within thirty (30) days of receiving written notice of the breach. In the event that Client terminates this Agreement due to Intrinsic Institute’ breach, Client will receive a refund of the Fees remaining unused as of the termination date.
6.3. Consequences Upon Termination. Upon the termination or expiration of this Agreement for any reason: (a) Client’s and its Authorized Users’ License and rights to use the Service will immediately and automatically terminate; (b) Client and its Authorized Users will cease all access and use of the Service and any Intrinsic Institute Intellectual Property related thereto; (c) Client will immediately return to Intrinsic Institute any Intrinsic Institute Intellectual Property, Documentation, and any other Intrinsic Institute property in Client’s possession; and (d) Client will certify its compliance with this Section to Intrinsic Institute in writing upon request. To the extent that Intrinsic Institute is able, Intrinsic Institute will retain data collected using the Service for any minimum period required by applicable law and regulations. Thereafter, Intrinsic Institute may retain or delete the Client Data in accordance with Intrinsic Institute’s data retention policy as then in effect and as modified from time to time. Notwithstanding the foregoing, Intrinsic Institute will have no obligation to provide or return Client Data to Client upon termination.
7.1. Limited Warranty. Intrinsic Institute warrants that to its knowledge, the Service, as provided by Intrinsic Institute, does not and will not contain any malicious content intended to harm devices.
7.2. Disclaimer. THE WARRANTIES SET FORTH IN SECTION 7.1 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY INTRINSIC INSTITUTE. WITH THE EXCEPTION OF SUCH WARRANTIES, THE SERVICE, THE DOCUMENTATION, AND ANY SERVICES PROVIDED BY INTRINSIC INSTITUTE UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, INTRINSIC INSTITUTE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. INTRINSIC INSTITUTE DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS; THAT ACCESS TO OR OPERATION OR USE OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS FREE; THAT DEFECTS IN THE SERVICE, IF ANY, WILL BE CORRECTED; OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. INTRINSIC INSTITUTE DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICE WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND CLIENT UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. THE SERVICE IS NOT A BACKUP SERVICE FOR STORING CONTENT OR OTHER DATA, AND INTRINSIC INSTITUTE WILL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA. INTRINSIC INSTITUTE IS NOT RESPONSIBLE FOR OR LIABLE FOR ANY EMPLOYMENT, RECRUITING, OR PROMOTION DECISIONS, FOR ANY REASON, MADE BY CLIENT UTILIZING THE SERVICE. INTRINSIC INSTITUTE MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY REGARDING THE PLATFORM, ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY THIRD PARTY HARDWARE, EQUIPMENT OR SERVICE WITH WHICH THE SERVICE MAY BE REQUIRED TO COMMUNICATE OR OPERATE. IN THE EVENT THAT INTRINSIC INSTITUTE’S USE OF ANY SOFTWARE, PRODUCTS AND/OR MATERIALS NECESSARY TO PROVIDE THE SERVICE CONTEMPLATED HEREUNDER IS TERMINATED BY A THIRD-PARTY FOR ANY REASON, INTRINSIC INSTITUTE MAY TERMINATE THIS AGREEMENT WITHOUT LIABILITY OR RECOURSE TO CLIENT.
7.3. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL INTRINSIC INSTITUTE BE LIABLE TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, PERSONAL INJURY, DEATH, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, INTRINSIC INSTITUTE’S ENTIRE AGGREGATE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO INTRINSIC INSTITUTE UNDER THIS AGREEMENT WITHIN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. THE PARTIES UNDERSTAND THAT THE FOREGOING DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY ARE MATERIAL TERMS OF THIS AGREEMENT AND A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR INTRINSIC INSTITUTE TO PROVIDE, AND CLIENT AND ITS AUTHORIZED USERS TO OBTAIN, ACCESS TO THE SERVICE.
8.1. Intrinsic Institute Indemnification. Intrinsic Institute will defend, indemnify and hold harmless Client and its officers, managers, directors, agents and employees (collectively, “Client Parties”) from and against any and all claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys’ fees arising therefrom) (“Claims”) to the extent arising out of any action or proceeding brought by a third party against any one or more of the Client Parties (i) alleging that the Service infringes a United States copyright or patent, or misappropriates a trade secret of a third party, in the venue in which the Service is provided; or (ii) related to any act or omission by Intrinsic Institute which is a material breach by Intrinsic Institute of any of its obligations under this Agreement; provided, however, that Intrinsic Institute will have no liability to the Client Parties with respect to any Claim that is based upon, arises out of, or would not have occurred but for (A) Client’s unauthorized operation, combination or use of the Service with any software, hardware, product, or apparatus installed in Client’s application or operating system environment following implementation of the Service; (B) Client’s use of any third party software or service, including but not limited to the Platform, other than in accordance with the license agreement for such third party software or service; or (C) any act or omission by Client which is a breach by Client of any of its obligations under this Agreement. If Intrinsic Institute reasonably believes that the Service infringes a copyright or patent, or misappropriates a trade secret of a third party, then Intrinsic Institute, at Intrinsic Institute’s sole choice, may (i) acquire the right for Client to continue to use the affected portion of the Service in accordance with the terms of this Agreement; (ii) replace or modify the affected portion of the Service so that they become non-infringing; or (iii) terminate this Agreement and refund to Client an equitable portion of the Fees already paid to Intrinsic Institute for the Service.
8.2. Client Indemnification. Client will defend, indemnify and hold harmless Intrinsic Institute, its affiliates and their respective officers, managers, directors, agents and employees (collectively, “Intrinsic Institute Parties”) from and against any and all Claims to the extent arising out of any action or proceeding brought by a third party against any one or more of the Intrinsic Institute Parties (i) alleging injury, damage or loss resulting from Client’s use of the Service (other than a Claim for which Intrinsic Institute is obligated to hold harmless, indemnify and defend the Client Parties under Section 8.1 above); (ii) alleging that the Client Data located upon or transmitted through the Service infringes a copyright or patent, or misappropriates a trade secret of a third party; (iii) related to any act or omission by Client which is a material breach by Client of any of its obligations under this Agreement; related to any misuse; or (iv) alleging injury, damage or loss resulting from Client’s use of any third party software or service in connection with the Service, including but not limited to the Platform.
8.3. Exclusive Remedy. This Section 8 sets forth Client’s exclusive remedy with respect to any Claim for Intrinsic Institute’s alleged violation of the intellectual property or other rights of third parties with respect to the Service. Intrinsic Institute will have no liability to indemnify Client under this Section 8 if Client is in breach of any of its obligations under this Agreement.
8.4. Conditions for Indemnification. Intrinsic Institute’s and Client’s indemnification obligations as provided above will be conditioned upon the Party seeking indemnification: (i) giving prompt written notice to the other Party of any claim, demand, or action for which indemnity is sought; (ii) fully cooperating in the defense or settlement of any such claim, demand or action; and (iii) giving the indemnifying Party sole control of the defense, investigation, and/or settlement of the claim, demand or action for which indemnification is sought, including, without limitation, the employment and engagement of attorneys of its choice to handle and defend the same. In no event, however, will the indemnifying party admit liability on behalf of the indemnified Party without the prior written consent of such indemnified Party, such consent which will not be unreasonably withheld, conditioned or delayed. Subject to the foregoing, however, the indemnified Party, at its own expense, may participate, through its attorneys or otherwise, in the investigation, trial, and defense of any such claim, demand, or action, and any appeal therefrom.
9.1. Confidentiality and Non-Use. The receiving Party will use reasonable efforts to avoid unauthorized disclosure of the disclosing Party’s Confidential Information. The receiving Party will protect the disclosing Party’s Confidential Information from unauthorized disclosure by taking at least those steps that the receiving Party uses to protect its own Confidential Information, but in no event less than reasonable efforts. The receiving Party will not use the disclosing Party’s Confidential Information except for purposes of fulfilling its obligations under this Agreement. The receiving Party may disclose the disclosing Party’s Confidential Information to its employees, agents, service providers, and other persons who have a need to know such Confidential Information in connection with this Agreement. Before doing so, the receiving Party will take reasonable steps to ensure that such persons will comply with the restrictions imposed on the receiving Party by this Agreement. The obligation to protect Confidential Information will continue as long as the receiving Party possesses the disclosing Party’s Confidential Information.
9.2. Permitted Disclosure. The receiving Party may disclose Confidential Information as required by law or in compliance with any court or administrative order; provided that the receiving Party gives the disclosing Party reasonable written notice as permitted by law that such Confidential Information is being sought by a third party in order to afford the disclosing Party the opportunity to limit, protect or prevent such disclosure.
10.1. Client Data. Use of the Service may involve the receipt, processing, and storage of data input by Client and its Authorized Users (the “Client Data”). Because Client Data is provided by Client and its Authorized Users, Intrinsic Institute does not control such Client Data. In connection with Client Data, Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to use and authorize Intrinsic Institute to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data within the United States as may be required by applicable law. Client will provide Intrinsic Institute with copies of any consents or other materials as may be requested by Intrinsic Institute and will use any consent forms that may be required by Intrinsic Institute. Client represents and warrants that Client has all the rights necessary for Client to grant the rights in this Section 10 and the use of Client Data does not violate any law. By providing Client Data, Client hereby grants Intrinsic Institute a worldwide, non-exclusive, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing the Client Data for purposes of providing the Service to Client under this Agreement. Additionally, Client grants to Intrinsic Institute a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, and transferable license to use, reproduce, adapt, perform, compile, display, incorporate, modify, and create derivative and collective works utilizing Client Data in a de-identified format for the improvement of the Service and Intrinsic Institute’s other products and services (as may exist now or in the future) and for such other lawful purposes as Intrinsic Institute sees fit.
10.2. Inaccurate Client Data. All Client Data originates from Client and its Authorized Users, and as such, is beyond the control of Intrinsic Institute. Without limiting the generality of any other provision of this Agreement, Intrinsic Institute will have no responsibility or liability related to the accuracy, content, currency, completeness, or delivery of the Client Data provided by Client or its Authorized Users. Intrinsic Institute is not responsible for the accuracy, content, currency, completeness, and delivery of the Client Data uploaded and/or input by its Authorized Users.
11.1. Non-Solicitation. During the Term of this Agreement and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement on behalf of Intrinsic Institute who is then in the employment of Intrinsic Institute. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 11.1, and the hiring by Client of any such employee who freely responds thereto shall not be a breach of this Section 11.1. If Client breaches Section 11.1, Client shall, on demand from Intrinsic Institute, pay to Intrinsic Institute a sum equal to one (1) year’s base salary or the annual fee that was payable by Intrinsic Institute to that employee plus the recruitment costs incurred by Intrinsic Institute in replacing such person.
11.2. Non-Exclusivity of Services. Intrinsic Institute retains the right to provide the Service to third parties during the Term of this Agreement and into the future. Nothing contained herein shall prevent Intrinsic Institute from providing the same or similar services as the Service and any Professional Services provided hereunder, for other third parties.
12.1. Relationship of the Parties. The relationship of Intrinsic Institute and Client established by this Agreement will be solely that of independent contractors, and nothing herein will create or imply any other relationship. Intrinsic Institute does not grant Client or any of Client’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of Intrinsic Institute, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of Intrinsic Institute, or to transfer, release or waive any right, title or interest of Intrinsic Institute. Intrinsic Institute will have the right to determine the method, details, and means of performing any services pursuant to this Agreement.
12.2. Assignment. Client may not assign, transfer, or sell (voluntarily or by operation of law) its rights or obligations under this Agreement, nor delegate its duties hereunder to any other person, without Intrinsic Institute’ prior written consent. A transfer of a controlling interest or other change in control in Client will constitute an assignment. Any purported assignment without Intrinsic Institute’s consent will be void and will constitute a breach of this Agreement. Intrinsic Institute may assign this Agreement or delegate or subcontract its obligations under this Agreement at any time.
12.3. Entire Agreement; Conflicts; Modification. This Agreement, including all Addendums and any other exhibits and schedules hereto, and any separate support and maintenance agreement between the Parties constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement and any Order Form, exhibit, or schedule thereto will be effective unless in writing and signed by the Party to be bound. In the event any provisions contained in a separate Order Form, support and maintenance agreement (including but not limited to the Maintenance Agreement), or Addendum hereto expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of such separate Order Form, agreement, or Addendum will govern to the extent such provisions expressly conflict. No use of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.
12.4. Notices. Any notices must be given in writing directed to the address of each Party set forth on the cover page of this Agreement, or to such other address as either Party may substitute by written notice to the other. Notices will be deemed given (a) when personally delivered; (b) if sent by recognized overnight national courier service, on the second business day after deposit with the courier, properly addressed and fee prepaid or billed to sender; or (c) when sent by fax or e-mail, upon receipt of proper confirmation of sending, provided a copy of the notice is concurrently sent by mail.
12.5. Remedies. Client agrees that a breach of Sections 2.3, 2.4, 2.5, 5.2, 6.3, 9, and 11.1 will cause Intrinsic Institute irreparable injury and damage. Notwithstanding Section 12.6 below, the Parties expressly agree that Intrinsic Institute will be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which Intrinsic Institute might be entitled. The Parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder. In the event a court refuses to honor the waiver of bond hereunder, the Parties expressly agree to a bond in the amount of $100.00. All remedies for such a breach will be cumulative and the pursuit of one remedy will not be deemed to exclude any other remedy with respect to the subject matter hereof.
12.6. Governing Law; Venue. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to its conflicts or choice of law principles. Subject to Intrinsic Institute’s rights under Section 12.5, the Parties will attempt in good faith to resolve any dispute, claim, or controversy arising out of or relating to this Agreement through negotiations and/or mediation (if mutually agreed) between representatives of each of the Parties who has all necessary authority to settle the relevant dispute, claim, or controversy (such as each Party’s CEO). If the dispute, claim, or controversy cannot be settled amicably within thirty (30) days from the date on which either Party has served written notice on the other of such dispute, claim, or controversy, then either Party may seek to enforce its rights under this Agreement by filing suit in the federal or state courts sitting in or exercising jurisdiction over Johnson County or Wyandotte County, Kansas. Such courts shall have the sole and exclusive jurisdiction over any dispute, claim or controversy arising out of this Agreement and the parties hereby irrevocable submit to the personal jurisdiction of such courts.
12.7. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A fax or electronic transmission of a signed original (including via DocuSign or similar digital signature service) will have the same effect as delivery of the signed original.
12.8. Force Majeure. Neither Party will be liable for any delay in performing its obligations (other than payment of money) if the delay is caused by any event beyond the reasonable control of the Party, including, without limitation, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, material or products shortages, labor disturbances, epidemic, disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any governmental action, terrorist attack or other similar event.
12.9. Severability. If any term or provision of this Agreement will be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal or unenforceable term or provision will be deemed not to be part of this Agreement.
12.10. Third Parties; Waiver. Nothing in this Agreement, express or implied, will create or confer upon any person or entity not a named party to this Agreement any legal or equitable rights, remedies, liabilities or claims, except as expressly provided herein. The failure of either Party to enforce the provisions of this Agreement will not be deemed to be a waiver of their right to enforce them.
12.11. Publicity. Client shall not communicate with representatives of the general public, general press, technical press, radio, television or other communications media regarding this Agreement without the prior written consent of Intrinsic Institute, which shall not be unreasonably withheld. Client shall not publish, reproduce or arrange for press releases regarding Intrinsic Institute or this Agreement without the prior written consent of Intrinsic Institute.
12.12. Export Restrictions. Client and its Authorized Users will comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service. Without limiting the generality of the foregoing, Client represents that (a) Client and, to its knowledge, its Authorized Users are not named on any U.S. or other applicable government list of persons or entities prohibited from receiving exports; and (b) Client will not permit its Authorized Users to access or use the Service in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction.
12.13. Survival. The terms and provisions of Sections 2.3, 2.4, 2.5, 2.6, 4.1, 4.2, 6.3, and 7 through 12 inclusive will survive any termination or expiration of this Agreement.