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This page was last changed on January 31, 2024, last checked on January 31, 2024, and applies to citizens of the United States.
Our website, https://selling.com/ (hereinafter: "the website") uses cookies and other related technologies (for convenience all technologies are referred to as "cookies"). Cookies are also placed by third parties we have engaged. In the document below we inform you about the use of cookies on our website.
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To exercise these rights, please contact us. Please refer to the contact details at the bottom of this Cookie Policy. If you have a complaint about how we handle your data, please contact our Data Protection Officer at, privacy@selling.com.
If you are on one of our EU/UK-facing sites, and to the extent EU and UK data protection laws apply to you, Selling.com has developed a privacy team to handle data subject rights requests for you. Access to your request is limited to you and our privacy team. Should you have any questions or concerns please contact privacy@selling.com.
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7.1 Manage your opt-out PreferencesFor questions and/or comments about our Cookie Policy and this statement,
please contact us by using the following contact details:
Selling.com, Inc.
2385 NW Executive Center Drive
Suite 100
Boca Raton, FL 33431
USA
Website: https://www.selling.com
Email: privacy@selling.com
This Cookie Policy was synchronized with cookiedatabase.org on January 31, 2024.
Thank you for choosing Infotelligent! These Platform Terms of Service, together with your Quotation constitute an Agreement between Infotelligent, Inc. (Infotelligent) and you as a Licensee of Infotelligent’s products and/or services (“Services”). By accessing or using Infotelligent’s Services, you signify that you have read, understood, and agree to be bound by this Agreement.
Infotelligent agrees to provide to Licensee the Services as set forth in the Quotation. “Quotation” means a written description of services that is published by Infotelligent and agreed to or acknowledged by Licensee by signature, online acknowledgement, or by proceeding with the ordered services. The “Quotation” may be titled “Insertion Order”, “Service Order”, “Purchase Order”, “Work Order”, “Launch Document”, “Production Order” or with similar title. The “Quotation” is the specifically incorporating the terms of this Agreement. In the event of a conflict between the terms of the “Quotation” and the terms of this Agreement, the terms of the “Quotation” will prevail to the extent of such conflict.
Subject to the terms of the Agreement and your payment of undisputed fees, Infotelligent grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to access and use the Services for Customer’s internal use during the term of the Agreement. Infotelligent will provide Licensee with reasonable technical support for the Services.
The Services are provided “As Is.” Information provided as part of the licensed materials are updated on an ongoing basis and provided according to the criteria set forth in the “Quotation.” In addition, some of the content may be provided by third parties and Infotelligent’s ability to provide such content may be subject to the continuing ability to contract with these third parties. Licensee therefore acknowledges that the content of licensed materials may change over time and that Infotelligent, in its sole discretion, may modify, supplement or discontinue content or features. Infotelligent shall have no liability to Licensee for such modifications to its Services where the Services substantially conform to the “Quotation”.
Licensee agrees that the licensed materials, Infotelligent’s platform, software, applications and technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trade and service marks, copyrights, patents, and other intellectual property) (“collectively Licensed Materials”) are the property of Infotelligent. Licensee further agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials and Licensee expressly disclaims and waives any and all claims to any ownership. This includes, without limitation, any licensed materials that Licensee downloads, prints, saves, or uses. Licensee further agrees that the licensed materials are unique, special, and valuable. Subject to the rights expressly granted by this Agreement, Infotelligent reserves all right, title, and interest in and to the Licensed Materials.
Subject to earlier termination as provided below, this Agreement will start on the effective date and will continue for the initial term as set forth in the “Quotation.” Thereafter, this Agreement will automatically renew for additional periods of the same duration as the initial term, unless either party requests termination at least 30 days prior to the end of the then-current term. The fee for each renewal term shall be the fee applicable to all Services to which Licensee was subscribed as of the renewal date plus an increase of eight percent (8%).
A party may terminate this Agreement for cause: (1) upon 30 days written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such period; or (2) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Within 30 business days of the effective date of termination, Licensee will pay Infotelligent any remaining amounts owed.
If this Agreement is terminated by Licensee in accordance with this section, Infotelligent will refund any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Infotelligent in accordance with this section, Licensee will pay any unpaid fees covering the remainder of the term. In no event will termination relieve Licensee of its obligation to pay any fees payable to Infotelligent for the period prior to the effective date of termination.
Upon expiration or termination of this Agreement for any reason, Licensee agrees that its access to the Licensed Materials is automatically terminated.
Licensee shall pay to Infotelligent the undisputed fees described in the “Quotation” in accordance with the terms set forth therein. Unless otherwise indicated in the “Quotation,” the entire fee shall be due and payable within 30 days of Licensee’s receipt of an invoice. In addition, if Licensee’s terms of use require the payment of additional fees, Licensee will be billed for such extra charges and Licensee agrees to pay the additional fees invoiced by Infotelligent. Except as expressly provided for herein, the fees are non-refundable and non-cancellable.
Full payment for undisputed invoices must be received by Infotelligent within 30 days after Licensee’s receipt of each such invoice. Undisputed, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
If Licensee fails to timely make any payment of fees, Infotelligent may take any or all of the following actions: restrict or suspend Licensee’s access to the licensed materials; terminate this Agreement or accelerate the payment of fees such that all unpaid fees shall be immediately payable. Restriction or suspension of Licensee’s online access to the licensed materials during period of non-payment shall have no effect on the term of this Agreement nor on Licensee’s obligation to pay the fee for the period of suspension or restriction.
Licensee will be responsible for all taxes, including, but not limited to, sales tax, use tax and value added taxes associated with the Services and assessable by any local, state, provincial, federal, or foreign jurisdiction. If Infotelligent has a duty to collect and remit tax, the tax may be invoiced to Licensee and shall be paid by the Licensee upon receipt of the invoice. Licensee shall indemnify, defend, and hold harmless Infotelligent and its affiliates from and against any claims, actions, or proceedings of or pertaining to any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claim, action, or proceeding is directly caused by a failure of Infotelligent to remit amounts collected for such purpose from Licensee.
For purposes of this Agreement, the term “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. “Confidential Information” includes, but is not limited to improvements, inventions, discoveries, processes, methods, design projects, research and development data, technical specifications, plans, drawings, sketches; business information, including product costs, vendor and customer lists, price lists, production schedules, business plans, sales, revenue, profit and loss information and any other information or knowledge not generally available to the public. Infotelligent pricing and other terms of any Service Order constitute Confidential Information.
Confidential Information will not include: (1) information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party; (2) information that is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party; (3) information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; (4) information that the receiving party developed independently of any disclosures of such information by the disclosing party or (5) a contact’s identity and contact information, where the receiving party, through the use of the services, has developed a business relationship with that contact.
Neither party may disclose any Confidential Information to any third party except its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to maintain the confidentiality of the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed.
The parties agree that money damages might not provide a sufficient remedy for any breach or threatened breach of this Agreement, including the confidentiality provisions of this section. As such, in addition to all other remedies available at law (which neither party waives by the exercise of any rights hereunder), the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Receiving Party hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
To the extent that either party transmits, receives stores or processes personal information under this Agreement, that party shall comply with all applicable laws, rules and regulations regarding privacy and the lawful processing of personal data, including, but not limited to, the General Data Protection Regulation of the European Union (the “GDPR”); the California Consumer Privacy Act (CCPA), the Lei Geral de Proteção de Dados LGPD/Brazil or other privacy rules or regulations. To the extent that personal data obtained by Licensee under this Agreement is subject to the General Data Protection Regulation of the European Union (the “GDPR”) or other similar privacy rules or regulations, each party agrees that it is a “controller” with respect to such data and agrees to comply with all applicable provisions of the applicable privacy law or regulation. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any personal information unless it has a lawful basis to process such information. Licensee represents, warrants, and covenants that it will not, through its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or right of any third party.
Each party represents, warrants and covenants to the other party that (1) it has all necessary rights and authority to enter into this Agreement and to grant the rights and licenses hereunder, (2) the execution or electronic acceptance of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, and (3) its performance hereunder will comply with all applicable laws, rules and regulations.
Infotelligent warrants that the Services will materially conform to the description set forth in the “Quotation.” As Infotelligent’s sole and exclusive liability and Licensee’s sole and exclusive remedy for the breach of the warranty set forth herein, Infotelligent will use commercially reasonable efforts to correct the Services to comply with such warranty without charge. If Infotelligent is unable to make the Services operate as warranted within 30 days after Licensee’s written notice, then Licensee or Infotelligent may terminate this Agreement and Infotelligent will refund any fees actually paid by Licensee (excluding any implementation fees or other one-time fees for professional services) to Infotelligent for the remainder of the then-current term.
Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance or because of other causes beyond Infotelligent’s reasonable control. Infotelligent will use reasonable efforts to provide advance notice in writing or by email of any service disruption. However, Infotelligent does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Infotelligent makes no warranty with respect to the security of such third-party infrastructures or third-party products. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL, LOST BUSINESS, LOST OR CORRUPTED DATA, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR NOT; AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY INFOTELLIGENT IS TERMINATION BY WRITTEN NOTICE AND A REFUND OF THE PRORATED PORTION OF THE FEES THAT LICENSEE HAS ACTUALLY PAID. INFOTELLIGENT’S MAXIMUN LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO INFOTELLIGENT UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE FIRST LIABILITY AROSE. FURTHER, INFOTELLIGENT SHALL NOT BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE INCURRED IN CONNECTION WITH THE USE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY TECHNICAL MALFUNCTION, INPUTTING ERRORS, SYSTEM ERRORS, CORRUPTION OR LOSS OF DATA, OR OTHER DAMAGE.THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR LIABILITIES BASED ON INDEMNIFICATION, INCLUDING TAX INDEMNIFICATION.
Infotelligent will indemnify, defend and hold harmless Licensee and its shareholders, officers, directors, employees, affiliates and agents from and against any and all damages, liabilities, costs, expenses, and losses (including, without limitation, reasonable legal fees) incurred arising out of any claim, suit, action or proceeding by a third party to the extent that such losses arise from allegations that the Services infringe, misappropriate, or violate any intellectual property rights. If any portion of the Services becomes, or in Infotelligent’s opinion is likely to become, the subject of a claim of infringement, Infotelligent may, at Infotelligent’s option: (i) procure for Licensee the right to continue using the Services; (ii) replace the Services with non-infringing software or services that do not materially impair the functionality of the Services; (iii) modify the Services so that it becomes non-infringing; or (iv) terminate this Agreement and refund any fees actually paid by Licensee for the remainder of the then-current term, and upon such termination, Licensee will immediately cease all use of the Services. Notwithstanding the foregoing, Infotelligent will have no obligation under this section or otherwise with respect to any infringement claim based upon any use of the Services not in accordance with this Agreement; any use of the Services in combination with other products, equipment, software or data not recommended or supplied by Infotelligent; or any modification of the Services by any person other than Infotelligent.
THIS SECTION SETS FORTH LICENSEE’S SOLE REMEDY AND INFOTELLIGENT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED ACTIONS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Licensee will indemnify, defend and hold harmless Infotelligent and its shareholders, officers, directors, employees, affiliates and agents from and against any and all Losses incurred arising out of any claim, suit, action or proceeding by a third party that arises from Licensee’s use of the Services in violation of this Agreement.
Each party’s obligations set forth above are expressly conditioned upon each of the foregoing: (1) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of any threatened or actual claim, lawsuit or proceeding, except that the Indemnified Party’s failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party’s obligations hereunder except to the extent that such delay prejudices the Indemnifying Party’s ability to defend such claim, lawsuit or proceeding; (2) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit, except that the Indemnifying Party may not settle a claim or suit without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement requires the Indemnified Party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (3) the Indemnified Party will cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim, lawsuit or proceeding.
This Agreement shall be deemed to be made under the laws of Florida and for all purposes shall be governed by, enforced under and constructed in accordance with the laws thereof, without regard to principals of conflicts of law. Subject to the agreement to arbitrate disputes (below), any court action pertaining to this Agreement shall be brought in a federal or state court located in or serving Palm Beach County, Florida. The Licensee expressly consents to and agrees to the venue and jurisdiction of the courts in Florida for purposes of determining any and all rights or obligations under this Agreement. Notwithstanding the foregoing, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
Except for Excluded Claims as defined below, any dispute, claim or controversy arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including any determination regarding the scope or applicability of this agreement to arbitrate, shall be determined by mandatory, final and binding arbitration before a single arbitrator. The place of arbitration shall be in Palm Beach County, Florida. The arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to AAA rules and procedures. All arbitration fees and costs, including any upfront costs and application fees, shall be borne by the Parties as the arbitrator may allocate, or if the arbitrator makes no such allocation, by both Parties in equal shares. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce and further agree that any arbitration(s) arising from or in relationship to this Agreement is/are to be administered as a commercial matter(s) under AAA’s Commercial Rules.
This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this Agreement.
No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
The following claims (“Excluded Claims”) shall be litigated and are not subject to arbitration: (1) Claims for the non-payment of subscription fees to the extent the claim is for $5,000 or less; (2) claims against a party to this Agreement under the provisions involving claims by third parties; (3) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s confidential information; (4) claims to collect taxes; and (5) claims for injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement. The litigation claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.
In the event of any dispute arising under this Agreement, whether pursued in arbitration or in court, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
Except as provided elsewhere in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either party by law, in equity or otherwise.
Neither party will be liable for or will be considered to be in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other natural occurrences, any conflicting order, direction, action or request of the United States federal, state or local government or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, acts of terrorism, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the parties’ obligations to one another shall be excused and/or postponed during the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended unless otherwise agreed to by the parties. No force majeure event alleviates a payment obligation
If Licensee provides any suggestions, ideas, feedback, or recommendations to Infotelligent regarding the Services (“Feedback”), Infotelligent may use this Feedback for any purpose and without any obligation to Licensee. By providing Infotelligent with Feedback, Licensee gives Infotelligent a worldwide, perpetual, irrevocable, fully paid and royalty-free license to use the Feedback and exploit the Feedback in any manner.
This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of both parties hereto and their respective successors and assigns; provided, however, that this Agreement, nor any of the rights, interests or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party.
All notices or other communications permitted or required to be given hereunder shall be sent via electronic mail to the electronic mail address provided by the Licensee as set forth on the Service Order or as otherwise updated by Licensee. Notices to Infotelligent shall be sent to info@infotelligent.com. Such notices shall be deemed given when sent.
This Agreement (these terms together with the applicable Quotation) is the complete and entire agreement between the Parties and supersedes any preexisting agreements, understandings, commitments, representations whether written, oral or implied.
If any provision of this Agreement is deemed unenforceable or found by an administrative body as invalid such invalidity or enforceability shall in no effect the other provisions of this Agreement which shall remain in full force and effect.
In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this agreement or by law, be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.
If any provisions of the Agreement shall be declared to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the remaining provisions hereof, which shall remain in full force and effect.
The headings contained in this Agreement are for convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions hereof.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Last Updated: September, 2022
Thank you for choosing Infotelligent! These Platform Terms of Service, together with your Quotation constitute an Agreement between Infotelligent, Inc. (Infotelligent) and you as a Licensee of Infotelligent’s products and/or services (“Services”). By accessing or using Infotelligent’s Services, you signify that you have read, understood, and agree to be bound by this Agreement.
Infotelligent agrees to provide to Licensee the Services as set forth in the Quotation. “Quotation” means a written description of services that is published by Infotelligent and agreed to or acknowledged by Licensee by signature, online acknowledgement, or by proceeding with the ordered services. The “Quotation” may be titled “Insertion Order”, “Service Order”, “Purchase Order”, “Work Order”, “Launch Document”, “Production Order” or with similar title. The “Quotation” is the specifically incorporating the terms of this Agreement. In the event of a conflict between the terms of the “Quotation” and the terms of this Agreement, the terms of the “Quotation” will prevail to the extent of such conflict.
Subject to the terms of the Agreement and your payment of undisputed fees, Infotelligent grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to access and use the Services for Customer’s internal use during the term of the Agreement. Infotelligent will provide Licensee with reasonable technical support for the Services.
The Services are provided “As Is.” Information provided as part of the licensed materials are updated on an ongoing basis and provided according to the criteria set forth in the “Quotation.” In addition, some of the content may be provided by third parties and Infotelligent’s ability to provide such content may be subject to the continuing ability to contract with these third parties. Licensee therefore acknowledges that the content of licensed materials may change over time and that Infotelligent, in its sole discretion, may modify, supplement or discontinue content or features. Infotelligent shall have no liability to Licensee for such modifications to its Services where the Services substantially conform to the “Quotation”.
Licensee agrees that the licensed materials, Infotelligent’s platform, software, applications and technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trade and service marks, copyrights, patents, and other intellectual property) (“collectively Licensed Materials”) are the property of Infotelligent. Licensee further agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials and Licensee expressly disclaims and waives any and all claims to any ownership. This includes, without limitation, any licensed materials that Licensee downloads, prints, saves, or uses. Licensee further agrees that the licensed materials are unique, special, and valuable. Subject to the rights expressly granted by this Agreement, Infotelligent reserves all right, title, and interest in and to the Licensed Materials.
Subject to earlier termination as provided below, this Agreement will start on the effective date and will continue for the initial term as set forth in the “Quotation.” Thereafter, this Agreement will automatically renew for additional periods of the same duration as the initial term, unless either party requests termination at least 30 days prior to the end of the then-current term. The fee for each renewal term shall be the fee applicable to all Services to which Licensee was subscribed as of the renewal date plus an increase of eight percent (8%).
A party may terminate this Agreement for cause: (1) upon 30 days written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such period; or (2) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Within 30 business days of the effective date of termination, Licensee will pay Infotelligent any remaining amounts owed.
If this Agreement is terminated by Licensee in accordance with this section, Infotelligent will refund any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Infotelligent in accordance with this section, Licensee will pay any unpaid fees covering the remainder of the term. In no event will termination relieve Licensee of its obligation to pay any fees payable to Infotelligent for the period prior to the effective date of termination.
Upon expiration or termination of this Agreement for any reason, Licensee agrees that its access to the Licensed Materials is automatically terminated.
Licensee shall pay to Infotelligent the undisputed fees described in the “Quotation” in accordance with the terms set forth therein. Unless otherwise indicated in the “Quotation,” the entire fee shall be due and payable within 30 days of Licensee’s receipt of an invoice. In addition, if Licensee’s terms of use require the payment of additional fees, Licensee will be billed for such extra charges and Licensee agrees to pay the additional fees invoiced by Infotelligent. Except as expressly provided for herein, the fees are non-refundable and non-cancellable.
Full payment for undisputed invoices must be received by Infotelligent within 30 days after Licensee’s receipt of each such invoice. Undisputed, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
If Licensee fails to timely make any payment of fees, Infotelligent may take any or all of the following actions: restrict or suspend Licensee’s access to the licensed materials; terminate this Agreement or accelerate the payment of fees such that all unpaid fees shall be immediately payable. Restriction or suspension of Licensee’s online access to the licensed materials during period of non-payment shall have no effect on the term of this Agreement nor on Licensee’s obligation to pay the fee for the period of suspension or restriction.
Licensee will be responsible for all taxes, including, but not limited to, sales tax, use tax and value added taxes associated with the Services and assessable by any local, state, provincial, federal, or foreign jurisdiction. If Infotelligent has a duty to collect and remit tax, the tax may be invoiced to Licensee and shall be paid by the Licensee upon receipt of the invoice. Licensee shall indemnify, defend, and hold harmless Infotelligent and its affiliates from and against any claims, actions, or proceedings of or pertaining to any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claim, action, or proceeding is directly caused by a failure of Infotelligent to remit amounts collected for such purpose from Licensee.
For purposes of this Agreement, the term “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. “Confidential Information” includes, but is not limited to improvements, inventions, discoveries, processes, methods, design projects, research and development data, technical specifications, plans, drawings, sketches; business information, including product costs, vendor and customer lists, price lists, production schedules, business plans, sales, revenue, profit and loss information and any other information or knowledge not generally available to the public. Infotelligent pricing and other terms of any Service Order constitute Confidential Information.
Confidential Information will not include: (1) information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party; (2) information that is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party; (3) information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; (4) information that the receiving party developed independently of any disclosures of such information by the disclosing party or (5) a contact’s identity and contact information, where the receiving party, through the use of the services, has developed a business relationship with that contact.
Neither party may disclose any Confidential Information to any third party except its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to maintain the confidentiality of the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed.
The parties agree that money damages might not provide a sufficient remedy for any breach or threatened breach of this Agreement, including the confidentiality provisions of this section. As such, in addition to all other remedies available at law (which neither party waives by the exercise of any rights hereunder), the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Receiving Party hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
To the extent that either party transmits, receives stores or processes personal information under this Agreement, that party shall comply with all applicable laws, rules and regulations regarding privacy and the lawful processing of personal data, including, but not limited to, the General Data Protection Regulation of the European Union (the “GDPR”); the California Consumer Privacy Act (CCPA), the Lei Geral de Proteção de Dados LGPD/Brazil or other privacy rules or regulations. To the extent that personal data obtained by Licensee under this Agreement is subject to the General Data Protection Regulation of the European Union (the “GDPR”) or other similar privacy rules or regulations, each party agrees that it is a “controller” with respect to such data and agrees to comply with all applicable provisions of the applicable privacy law or regulation. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any personal information unless it has a lawful basis to process such information. Licensee represents, warrants, and covenants that it will not, through its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or right of any third party.
Each party represents, warrants and covenants to the other party that (1) it has all necessary rights and authority to enter into this Agreement and to grant the rights and licenses hereunder, (2) the execution or electronic acceptance of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, and (3) its performance hereunder will comply with all applicable laws, rules and regulations.
Infotelligent warrants that the Services will materially conform to the description set forth in the “Quotation.” As Infotelligent’s sole and exclusive liability and Licensee’s sole and exclusive remedy for the breach of the warranty set forth herein, Infotelligent will use commercially reasonable efforts to correct the Services to comply with such warranty without charge. If Infotelligent is unable to make the Services operate as warranted within 30 days after Licensee’s written notice, then Licensee or Infotelligent may terminate this Agreement and Infotelligent will refund any fees actually paid by Licensee (excluding any implementation fees or other one-time fees for professional services) to Infotelligent for the remainder of the then-current term.
Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance or because of other causes beyond Infotelligent’s reasonable control. Infotelligent will use reasonable efforts to provide advance notice in writing or by email of any service disruption. However, Infotelligent does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Infotelligent makes no warranty with respect to the security of such third-party infrastructures or third-party products. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL, LOST BUSINESS, LOST OR CORRUPTED DATA, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR NOT; AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY INFOTELLIGENT IS TERMINATION BY WRITTEN NOTICE AND A REFUND OF THE PRORATED PORTION OF THE FEES THAT LICENSEE HAS ACTUALLY PAID. INFOTELLIGENT’S MAXIMUN LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO INFOTELLIGENT UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE FIRST LIABILITY AROSE. FURTHER, INFOTELLIGENT SHALL NOT BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE INCURRED IN CONNECTION WITH THE USE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY TECHNICAL MALFUNCTION, INPUTTING ERRORS, SYSTEM ERRORS, CORRUPTION OR LOSS OF DATA, OR OTHER DAMAGE.THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR LIABILITIES BASED ON INDEMNIFICATION, INCLUDING TAX INDEMNIFICATION.
Infotelligent will indemnify, defend and hold harmless Licensee and its shareholders, officers, directors, employees, affiliates and agents from and against any and all damages, liabilities, costs, expenses, and losses (including, without limitation, reasonable legal fees) incurred arising out of any claim, suit, action or proceeding by a third party to the extent that such losses arise from allegations that the Services infringe, misappropriate, or violate any intellectual property rights. If any portion of the Services becomes, or in Infotelligent’s opinion is likely to become, the subject of a claim of infringement, Infotelligent may, at Infotelligent’s option: (i) procure for Licensee the right to continue using the Services; (ii) replace the Services with non-infringing software or services that do not materially impair the functionality of the Services; (iii) modify the Services so that it becomes non-infringing; or (iv) terminate this Agreement and refund any fees actually paid by Licensee for the remainder of the then-current term, and upon such termination, Licensee will immediately cease all use of the Services. Notwithstanding the foregoing, Infotelligent will have no obligation under this section or otherwise with respect to any infringement claim based upon any use of the Services not in accordance with this Agreement; any use of the Services in combination with other products, equipment, software or data not recommended or supplied by Infotelligent; or any modification of the Services by any person other than Infotelligent.
THIS SECTION SETS FORTH LICENSEE’S SOLE REMEDY AND INFOTELLIGENT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED ACTIONS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Licensee will indemnify, defend and hold harmless Infotelligent and its shareholders, officers, directors, employees, affiliates and agents from and against any and all Losses incurred arising out of any claim, suit, action or proceeding by a third party that arises from Licensee’s use of the Services in violation of this Agreement.
Each party’s obligations set forth above are expressly conditioned upon each of the foregoing: (1) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of any threatened or actual claim, lawsuit or proceeding, except that the Indemnified Party’s failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party’s obligations hereunder except to the extent that such delay prejudices the Indemnifying Party’s ability to defend such claim, lawsuit or proceeding; (2) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit, except that the Indemnifying Party may not settle a claim or suit without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement requires the Indemnified Party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (3) the Indemnified Party will cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim, lawsuit or proceeding.
This Agreement shall be deemed to be made under the laws of Florida and for all purposes shall be governed by, enforced under and constructed in accordance with the laws thereof, without regard to principals of conflicts of law. Subject to the agreement to arbitrate disputes (below), any court action pertaining to this Agreement shall be brought in a federal or state court located in or serving Palm Beach County, Florida. The Licensee expressly consents to and agrees to the venue and jurisdiction of the courts in Florida for purposes of determining any and all rights or obligations under this Agreement. Notwithstanding the foregoing, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
Except for Excluded Claims as defined below, any dispute, claim or controversy arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including any determination regarding the scope or applicability of this agreement to arbitrate, shall be determined by mandatory, final and binding arbitration before a single arbitrator. The place of arbitration shall be in Palm Beach County, Florida. The arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to AAA rules and procedures. All arbitration fees and costs, including any upfront costs and application fees, shall be borne by the Parties as the arbitrator may allocate, or if the arbitrator makes no such allocation, by both Parties in equal shares. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce and further agree that any arbitration(s) arising from or in relationship to this Agreement is/are to be administered as a commercial matter(s) under AAA’s Commercial Rules.
This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this Agreement.
No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
The following claims (“Excluded Claims”) shall be litigated and are not subject to arbitration: (1) Claims for the non-payment of subscription fees to the extent the claim is for $5,000 or less; (2) claims against a party to this Agreement under the provisions involving claims by third parties; (3) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s confidential information; (4) claims to collect taxes; and (5) claims for injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement. The litigation claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.
In the event of any dispute arising under this Agreement, whether pursued in arbitration or in court, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
Except as provided elsewhere in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either party by law, in equity or otherwise.
Neither party will be liable for or will be considered to be in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other natural occurrences, any conflicting order, direction, action or request of the United States federal, state or local government or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, acts of terrorism, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the parties’ obligations to one another shall be excused and/or postponed during the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended unless otherwise agreed to by the parties. No force majeure event alleviates a payment obligation
If Licensee provides any suggestions, ideas, feedback, or recommendations to Infotelligent regarding the Services (“Feedback”), Infotelligent may use this Feedback for any purpose and without any obligation to Licensee. By providing Infotelligent with Feedback, Licensee gives Infotelligent a worldwide, perpetual, irrevocable, fully paid and royalty-free license to use the Feedback and exploit the Feedback in any manner.
This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of both parties hereto and their respective successors and assigns; provided, however, that this Agreement, nor any of the rights, interests or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party.
All notices or other communications permitted or required to be given hereunder shall be sent via electronic mail to the electronic mail address provided by the Licensee as set forth on the Service Order or as otherwise updated by Licensee. Notices to Infotelligent shall be sent to info@infotelligent.com. Such notices shall be deemed given when sent.
This Agreement (these terms together with the applicable Quotation) is the complete and entire agreement between the Parties and supersedes any preexisting agreements, understandings, commitments, representations whether written, oral or implied.
If any provision of this Agreement is deemed unenforceable or found by an administrative body as invalid such invalidity or enforceability shall in no effect the other provisions of this Agreement which shall remain in full force and effect.
In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this agreement or by law, be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.
If any provisions of the Agreement shall be declared to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the remaining provisions hereof, which shall remain in full force and effect.
The headings contained in this Agreement are for convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions hereof.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Last Updated: September, 2022
