End User License Agreement
This EULA is for use and access of “IntelliCloud™” (or “System”) which is comprised of: Intellinetics™ Inc. owned software (including but not limited to: Intellivue GX™, K12Docs, third-party licensed software, hardware, operating system(s), supporting infrastructure and web sites comprising such System owned, licensed to, or under the control of Intellinetics.™ Additionally, it also includes any associated media, printed materials, “on-line” or electronic documentation, and Internet-based service provided to End User.
IMPORTANT – READ CAREFULLY.
This EULA is a legal agreement between the “END USER” (either an individual or a legal entity), and Intellinetics™, Inc., 2190 Dividend Drive, Columbus, OH 43228 (each a “Party;” collectively “Parties”). This EULA is referred to below as the “Agreement.”
- GRANT OF LICENSE. Subject to the terms and condition of this Agreement, Intellinetics™ grants End User a non-assignable, nonexclusive, nontransferable and non-sublicensable right to access and use IntelliCloud™ in the United States and Canada. License terms for third-party licensed software will be governed by its published product documentation.
NOTE: THE SOFTWARE IS LICENSED, NOT SOLD, TO END USER.
- ACCEPTANCE OF TERMS.
- End User shall have no right to use or access IntelliCloud™ until End User agrees with this Agreement. End User may not use IntelliCloud™ if this Agreement is not accepted.
- End User can accept this Agreement by carefully reading this EULA and clicking the “ACCEPTANCE OPTION” at the end of this Agreement. IF END USER IS AGREEING TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, END USER REPRESENTS THAT THE END USER HAS THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT.
- The then-current version of this Agreement is available for review at www.Intellinetics.com.
- CONDITIONS OF ACCESS AND USE.
- No grant of license or right to access or use IntelliCloud™ per Section 1 above, will be effective until this Agreement has been “ACCEPTED” and all published fees associated with IntelliCloud have been paid in full or in accordance with mutually agreed upon written payment terms. Specifically, End User shall pay all fees or charges to End User’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is incurred. The initial charges will be equal to any account setup fees plus the initial subscription fee. Payments shall be made annually as indicated by your Order Form, or as otherwise mutually agreed upon. You are responsible for paying the subscription fee for the entire Term, as defined below, whether or not the Services are actively used. Intellinetics reserves the right to modify its fees and charges and to introduce new charges at any time upon prior notice.
- Restrictions of Access and Use. End User shall not (i) modify, copy or create derivative works based on Intellinetics’™ Technology to include, but not be limited to IntelliCloud™; (ii) create Internet "links" to or from IntelliCloud™, or "frame" or "mirror" any content forming part of IntelliCloud™, other than on End User's own intranets or otherwise for its own internal business purposes (excluding any affiliated entities or any 3rd Party); (iii) disassemble, reverse engineer, or decompile IntelliCloud™ or Intellinetics Technology, or access it in order to (a) build a competitive product or system, (b) build a product or system using similar ideas, features, functions or graphics to those of the System, or (c) copy any ideas, features, functions or graphics of the System; or (iv) shall not have the right to transfer or sell rights to access and/or use IntelliCloud™ or to transfer or assign rights to any other individual or entity to access or use the IntelliCloud, or other materials relating thereto without Intellinetics’™ prior written consent.
- Software Updates. The System Software which End User will use may automatically download and install updates from time to time from Intellinetics™. These updates are designed to improve, enhance and further develop the System and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. End User agrees to receive such updates (and permit Intellinetics™ to deliver them to End User) as part of End Users use of System.
- IntelliCloud USE GUIDE.
- End User shall use IntelliCloud™ solely for lawful purposes regarding its internal business as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make IntelliCloud™ available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, hateful or otherwise unlawful, tortious, material, including material harmful to children, in violation of third party privacy rights, encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate a local, state United States or international law; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the IntelliCloud™ or the data contained therein; (vi) attempt to gain unauthorized access to the IntelliCloud™ or its related Systems or networks; and (vii) violate 3rd Party copyright trademarks or intellectual property rights.
- Repeated violations of acceptable IntelliCloud™ use will be considered a material breach of this Agreement and may result in termination of End User’s Agreement.
- End User agrees that End User is solely responsible for (and that Intellinetics™ has no responsibility to End User or to any third party for) any breach of End User’s obligations under this Agreement and for the consequences (including any loss or damage which Intellinetics™ may suffer) from any such breach.
- INTELLINETICS’™ RESONSIBILITIES. Intellinetics shall: (i) not use, edit or disclose the End User Content to any third party; (ii) comply with all applicable federal, state, and local law, regulations, and ordinances in the performance of this Agreement, (iii) use commercially reasonable efforts to maintain the security and integrity of the End User’s data and to make IntelliCloud™ generally available 95.5% of the calendar month twenty-four (24) hours a day, seven (7) days a week, except for: (a) regularly scheduled downtime for maintenance and/or software upgrades, of which Intellinetics™ will endeavor to provide at least 24 hours advance notice; or (b) downtime caused by circumstances beyond Intellinetics’™ reasonable control, see Section 22 “Force Majeure” herein; or (c) downtime caused by network intrusions or denial of service attacks, but only to the extent unavailability results notwithstanding the exercise by Intellinetics™ of commercially reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes.
- END USER’S RESPONSIBILITIES. The End User is responsible for all activities that occur within the End User’s User account(s). The End User: (i) has sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all “End User Content” (all electronic data or information posted by End User to IntelliCloud™); (iii) is responsible for properly maintaining the functional operation of all hardware equipment, internal network and software that interacts with IntelliCloud™; (iv) is responsible for connectivity to the Internet; (v) will utilize commercially reasonable efforts to prevent unauthorized access to, or use of IntelliCloud™; and will timely notify Intellinetics™ of any such unauthorized use; (vi) will comply with all applicable local, state, federal and foreign laws in use of IntelliCloud™; and (vii) will acknowledge receipt and respond appropriately, upon notice of issues that will affect IntelliCloud’s™ performance.
- INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
- Reservation of Rights. End User acknowledges that in providing IntelliCloud™, Intellinetics™ utilizes (i) the Intellinetics™ name, logo and domain name, the product and service names associated with the IntelliCloud™, and other trade names, trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “Intellinetics Technology”) and that the Intellinetics™ Technology includes and is created and provided through the use of intellectual property rights owned or licensed by Intellinetics (collectively, “Intellinetics™ Intellectual Property Rights”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Intellinetics™ Technology or Intellinetics Intellectual Property Rights are granted to End User, and all such licenses and rights are hereby expressly reserved.
- End User acknowledges and agrees that Intellinetics™ (or Intellinetics’ licensors) own all legal right, title and interest in and to the System, including any intellectual property rights which are used or incorporated in the System (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
- Nothing in this Agreement gives End User the right to use any of Intellinetics’ trade names, trademarks, service marks, logos, domain names and all other distinctive brand features unless agreed to in writing by Intellinetics™.
- End User Content. Intellinetics™ hereby acknowledges that Intellinetics™ does not have ownership of End User Content posted to IntelliCloud™. End User Content shall be considered Confidential Information subject to the terms of this Agreement. Intellinetics™ may reasonably access End User’s Content, solely to respond to System’s technical issues or in response to End User’s request that requires access to System.
- Suggestions. Intellinetics™ shall have an unrestricted, royalty-free, worldwide, perpetual license to use or incorporate into IntelliCloud™ any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by End User or its System Users relating to the operation or performance of IntelliCloud™.
- TAXES. The fees for IntelliCloud™ do not include taxes. If Intellinetics™ is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Intellinetics™ net income, then such taxes and/or duties will be billed to and paid by End User immediately upon receipt of Intellinetics™ invoice and supporting documentation.
- TERM, RENEWAL AND TERMINATION.
- This Agreement shall commence when End User clicks to indicates acceptance and continue for the length of the Agreement term as set forth in the Order Form (the “Initial Term”) and any renewal terms thereof (a “Renewal Term,” and together with the Initial Term, the “Term”), unless terminated in accordance with this Section 9.1. This Agreement may be terminated by Intellinetics™ immediately (i) upon thirty (30) days written notice to End User if End User is in breach of any of its obligations hereunder, or (ii) End User or any of its affiliates commences, directs or controls any legal action seeking to render any of Intellinetics’™ intellectual property rights in the licensed software invalid or unenforceable.
- Immediately after termination of this Agreement, End User will cease all use of System.
- Consequences of Termination. Termination: (i) shall not relieve End User of the obligation to pay any fees accrued or payable to Intellinetics™ prior to the effective date of termination; (ii) upon request by End User, Intellinetics™ will make available a digital file of the End User’s Content in exchange for the then-current fees for such service which shall not be unreasonable. After thirty (30) calendar days following termination of this Agreement for any reason, Intellinetics™ shall have no obligation to maintain or provide any End User Content and shall thereafter, unless legally prohibited, delete all End User Content in its system or otherwise in its possession or under its control; and (iii) the sections of this Agreement that would reasonably survive the termination or expiration of this Agreement for any reason shall remain in effect after any such termination.
- NON-PAYMENT AND SUSPENSION. In addition to any other rights granted to Intellinetics hereunder, Intellinetics (and/or its authorized reseller) reserves the right to suspend or terminate this Agreement and End User's access to the Service if End User's account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection including attorneys’ fees and the fees of Intellinetics'/authorized reseller's experts and consultants. End User will continue to be charged monthly subscription fees during any period of suspension. If End User, Intellinetics or authorized reseller initiates termination of this Agreement, End User will be obligated to pay the balance due on its account computed in accordance with the provisions of this Agreement and/or on the applicable Order Form. End User agrees that Intellinetics (or authorized reseller, as applicable) may charge such unpaid fees to End User's credit card or otherwise bill for such unpaid fees. Intellinetics reserves the right to impose a reconnection fee in the event End-User is suspended and thereafter requests restoration of access. End-User agrees and acknowledges that neither Intellinetics nor authorized reseller has any obligation to retain End User data and that such End User data may be irretrievably deleted if your account is 30 days or more delinquent.
- EXCLUSION OF WARRANTIES.
- NOTHING IN THIS AGREEMENT, INCLUDING THIS SECTION 11 AND SECTION 12 SHALL EXCLUDE OR LIMIT INTELLINETICS’™ AND AUTHORIZED RESELLER’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRENTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN END USER’S JURISDICTION WILL APPLY TO END USER AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- END USER EXPRESSLY UNDERSTANDS AND AGREES THAT END USER’S USE OF THE SYSTEM IS AT END USER’S SOLE RISK AND THAT THE SYSTEM IS PROVIDED “AS IS” AND “AS AVAILABLE.”
- IN PARTICULAR, INTELLINETICS, PARENT COMPAY, SUBSIDIARIES, AUTHORIZED RELSELLER, AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO END USER THAT:
- END USER’S USE OF THE SYSTEM WILL MEET END USER’S REQUIREMENTS,
- END USER’S USE OF THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
- ANY INFORMATION OBTAINED BY END USER AS A RESULT OF END USER’S USE OF THE SYSTEM WILL BE ACCURATE OR RELIABLE, AND
- THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO END USER AS PART OF THE SYSTEM WILL BE CORRECTED.
- ANY MATERAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF SYSTEM IS DONE AT END USER’S OWN DISCRETION AND RISK AND THAT END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO END USER’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY END USER FROM EITHER INTELLINETICS™, AUTHORIZED RESELLER OR THROUGH OR FROM THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- INTELLINETICS™ AND AUTHORIZED RESELLER FURTHER EXPRESSLY DISCLAIM ALL WARRNATIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON–INFRINGEMENT.
- INDEMNIFICATION; LIMITATION OF LIABILITY.
- Intellinetics shall indemnify, defend, and hold harmless End User from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by End User resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the System, or any use of the System in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that End User promptly notifies Intellinetics in writing of the Third-Party Claim, cooperates with Intellinetics, and allows Intellinetics sole authority to control the defense and settlement of such Third-Party Claim.
- If such a Third-Party Claim is made or Intellinetics reasonably anticipates such a Third-Party Claim will be made, End User agrees to permit Intellinetics, at Intellinetics’ sole discretion, to (A) modify or replace the System, or component or part thereof, to make it non-infringing, or (B) obtain the right for End User to continue use. If Intellinetics determines that neither alternative is reasonably available, Intellinetics may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Intellinetics. This Section sets forth End User’s sole remedies and Intellinetics’ sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the System infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
- (iii)This Section will not apply to the extent that any such Third-Party Claim arises from End User Content or third-party products.
- SUBJECT TO THE OVERALL PROVISION IN PARAGRAPH 11.1 ABOVE, END USER EXPRESSLY UNDERSTANDS AND AGREES THAT INTELLINETICS™, ITS PARENT, SUBSIDIARIES, AUTHORIZED RESELLER, AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE FOR:
- ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY END USER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOOD WILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY END USER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
- ANY CHANGES WHICH INTELLINETICS™ AND/OR AUTHORIZED RESELLER MAY MAKE TO THE SYSTEM, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SYSTEM (OR ANY FEATURES WITHIN THE SYSTEM);
- THE DELETION OF, CORRUPTON OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATION DATA MAINTAINED OR TRANSMITTED BY OR THROUGH END USER’S USE OF THE SYSTEM;
- END USER’S FAILURE TO PROVIDE INTELLINETICS™ AND/OR AUTHORIZED RESELLER WITH ACCURATE ACCOUNT INFORMATION;
- END USER’S FAILURE TO KEEP END USER’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
- AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE GREATER OF FIVE THOUSAND DOLLARS ($5,000) OR THE AMOUNT OF FEES PAID TO INTELLINETICS BY END USER OVER THE TWELVE-MONTH PERIOD PRECEDING THE INITIAL EVENT GIVING RISE TO THE CLAIM.
- THE LIMITATIONS ON INTELLINETICS’™ AND/OR AUTHORIZED RESELLER’S LIABILITY TO END USER IN PARAGRAPH 11.1 ABOVE SHALL APPLY WHETHER OR NOT EITHER PARTY, HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
- LIMITATION OF ACTION: EXCEPT FOR ACTIONS OF NON-PAYMENT OR BREACH OF END USER’S OR INTELLINETICS’™ OR RESELLER’S INTELLECTUAL PROPERTY RIGHTS, NO ACTION (REGARDLESS OF FORM) ARISING OUT OF THIS AGREEMENT MAY BE COMMENCED MORE THAT TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCURED.
- Confidential Information. Intellinetics™ and End User understands and acknowledges that this Agreement will apply to all the disclosing party’s “Confidential Information,” meaning any information that has been identified as confidential or proprietary or reasonably appears to be proprietary or confidential in nature because legends or other markings, the circumstances of disclosure, or the nature of the information itself. Each party acknowledges and agrees to maintain the confidentiality of the the disclosing party’s Confidential Information (as defined below) and to treat such information with the same degree of care and security as it treats its own most confidential information, which in no event, will be less than a reasonable degree of care. Neither Party will not, without the other Party’s prior written consent, disclose the disclosing party’s Confidential Information to any person or entity other than to the employees, agents or consultants legally bound to abide by the terms hereof and having a need to know such information, or sell, license, publish, display, distribute or otherwise use such information except as authorized by this Agreement. The receiving party will be liable for any unauthorized disclosure of Confidential Information by its employees, agents, consultants or otherwise. The term Confidential Information” shall include derivative works, enhancements, maintenance modifications and documentation with respect thereto as well as any disclosed information clearly labeled by Intellinetics as being confidential or otherwise indicated by Intellinetics in writing as being confidential. Intellinetics Confidential Information shall also include, but is not limited to: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information and fee structures; (iii) business processes, methods and models; (iv) employee, customer and supplier information; (v) hardware and System designs, architectures, structure and protocols; (vi) product and service specifications; and (vii) manufacturing, purchasing, logistics, sales and marketing information.
- Valuable Business Asset. Intellinetics™ and End User understand and agrees that Confidential Information constitutes a valuable business asset of the other Party, the unauthorized use or disclosure of which may cause irreparable damage. In the event of a Party’s breach or threatened breach of any of the provisions in this Agreement, the Disclosing Party shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining the receiving party from any unauthorized use or disclosure of any Confidential Information.
- Exclusions. Notwithstanding Section 13.1 above, neither party’s Confidential Information shall include information which the receiving party can demonstrate by competent written proof (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available or otherwise part of the public domain; (b) is rightfully known by the receiving party without restriction on use prior to its first receipt of such information from the disclosing party; (c) is hereafter furnished to the receiving party by a third party authorized to furnish the information to the receiving party, as a matter of right and without restriction on disclosure; (d) is the subject of a written permission from the disclosing party to disclose; or (d) is independently developed by the receiving party without the use of any Confidential Information by the receiving party.
- Exceptions. Notwithstanding Section 13.1 above, disclosure of Confidential Information shall not be precluded if: (a) such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the receiving party shall first have given notice to the disclosing party and reasonably cooperated (to the extent permitted by law) with such party’s efforts to obtain a protective order requiring that the information to be disclosed be used only for the purposes for which the order was issued; or the receiving party received the prior written consent to such disclosure from disclosing party, but only to the extent permitted in such consent.
Precautions for Transfer and DisposalIf Content stored on the System is deleted or reformatted using the standard methods, the Content only appears to be removed on a superficial level, and it may be possible for someone to retrieve and reuse the Content by means of special software. To avoid unintended information leaks and other problems of this nature, it is recommended that qualified professional services be obtained to purge the device of Content.
By clicking “I accept the terms in the License Agreement” you agree to all the terms and agreements listed above.