InteSolv “inteVISTA” Software as a Service Agreement
THESE INTEVISTA HOSTED TERMS AND CONDITIONS ARE BETWEEN INTESOLV,INC. (DEFINED BELOW) AND “YOU” (COLLECTIVELY, THE “PARTIES”).
BY USING THE SERVICE (DEFINED BELOW), YOU AGREE THAT UNITED STATES LAW GOVERNS YOUR USE OF THE SERVICE IF YOU OBTAIN A SUBSCRIPTION TO THE SERVICE IN ANY LOCATION OTHER THAN THE UNITED STATES, MEXICO, OR CANADA, AND YOU AGREE TO THE TERMS REGARDING GOVERNING LAW AND VENUE SET FORTH IN THIS AGREEMENT(SEE GOVERNING LAW).
YOU AGREE THAT THIS AGREEMENT (DEFINED BELOW) IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS USED: FOR EXAMPLE, YOUR EMPLOYER.
As part of the Service, InteSolv will provide you with use of inteVISTA, software deployed as a hosted service and accessed over the Internet, including a browser interface and data encryption, transmission, access and storage. The service allows registered users to organize and offer content stored in approved content management systems. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the inteVISTA.com website incorporated by reference herein, including but not limited to inteVISTA.com’s privacy and security policies.
“Bundle” means the Software, together with such other InteSolv software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.
“inteVISTA” means the InteSolv software product that is a product SKU associated with the inteVISTA suite, together with such other InteSolv software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.
“inteVISTA LMS” means the specific inteVISTA product named “inteVISTA LMS”, which is software deployed as a hosted service and accessed over the Internet. The service integrates with Adobe Connect to organize and offer learning content, provide eCommerce functionality, generate certificates, display myLearning, and deliver an administrative interface.
“eCommerce” means an online transaction system that provides for the collection of monies by a 3rd party payment gateway and merchant processor with deposits made directly to Client designated bank accounts.
“Acrobat Connect” means the Acrobat Connect Enterprise Server Software that is a product SKU associated with Acrobat Connect Enterprise Server Software from Adobe Systems, Incorporated, together with such other Adobe software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.
“Not For Resale (NFR) Version” means a version, so identified, of the Software to be used to review and evaluate the Software, only.
“InteSolv” means InteSolv,Inc. and its licensors, if any.
“Software” means only the InteSolv software program(s) and third party software programs, in each case, supplied by InteSolv herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and.
“Trial Version” means a version of the Software, so identified, that may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
Privacy & Security Disclosure
The privacy and security policies may be viewed at http://www.intevista.com/Home/tabid/123/ctl/Privacy/Default.aspx. InteSolv reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
License Grant & Restrictions
InteSolv hereby grants you a one-year, non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by InteSolv and its licensors.
You may not access the InteSolv Service if you are a direct competitor of InteSolv, except with InteSolv ’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify InteSolv immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to inteVISTA immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another InteSolv user or provide false identity information to gain access to or use the Service.
Account Information & Data
InteSolv does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not InteSolv, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and InteSolv shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. InteSolv reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and InteSolv shall have no obligation to maintain or forward any Customer Data.
Intellectual Property Ownership
InteSolv alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the inteVISTA Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the inteVISTA Technology or the Intellectual Property Rights owned by InteSolv. The inteVISTA name, the inteVISTA logo, and the product names associated with the Service are trademarks of InteSolv or third parties, and no right or license is granted to use them.
Non-Payment & Suspension
In addition to any other rights granted to InteSolv herein, InteSolv reserves the right to suspend or terminate this Agreement and your access to the Service if your 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. You will continue to be charged during any period of suspension. If you or InteSolv initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that InteSolv may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
InteSolv reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that InteSolv has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
Termination for Cause
Any breach of your payment obligations or unauthorized use of the inteVISTA Technology or Service will be deemed a material breach of this Agreement. InteSolv, in its sole discretion, may terminate your account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, InteSolv may terminate a free account at any time in its sole discretion. You agree and acknowledge that InteSolv has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. InteSolv represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online InteSolv help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold InteSolv, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that InteSolv (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release InteSolv of all liability and such settlement does not affect InteSolv’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
InteSolv shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by InteSolv of its representations or warranties; or (iii) a claim arising from breach of this Agreement by InteSolv; provided that you (a) promptly give written notice of the claim to InteSolv ; (b) give InteSolv sole control of the defense and settlement of the claim (provided that InteSolv may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to InteSolv all available information and assistance; and (d) have not compromised or settled such claim. InteSolv shall have no indemnification obligation, and you shall indemnify InteSolv pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
Disclaimer of Warranties
INTESOLV AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. INTESOLV AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY INTESOLV AND ITS LICENSORS.
INTESOLV’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. INTESOLV IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
InteSolv and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
InteSolv may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in InteSolv’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in InteSolv’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to InteSolv (such notice shall be deemed given when received by InteSolv) at any time by any of the following: letter sent by confirmed facsimile to InteSolv at the following fax number: (512) 681-7251; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to InteSolv at the following addresses (whichever is appropriate): InteSolv, 8303 N. Mopac Expy Ste C240, Austin, TX 78759, addressed to the attention of: General Counsel.
Modification to Terms
InteSolv reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of InteSolv but may be assigned without your consent by InteSolv to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of InteSolv directly or indirectly owning or controlling 50% or more of you shall entitle InteSolv to terminate this Agreement for cause immediately upon written notice.
With respect to U.S. Customers, this Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Fresno, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and InteSolv as a result of this agreement or use of the Service. The failure of InteSolv to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by InteSolv in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and InteSolv and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.