Effective: January 26, 2021
These Customer Terms of Service (the “Customer Terms” or “Agreement”) describe your rights and responsibilities when using our privacy and data protection Services, Subscription or Products (“SSoP”). If you are a Customer (defined below), these Customer Terms govern your access and use of our SSoP and form a binding contract between you and IntelGARD (“we,” “our,” “us”). In the event Customer executes (or has previously executed) a separate services agreement with us related to the SSoP hereunder (a “Separate SSoP Agreement”) then: (i) any provisions or terms in such Separate SSoP Agreement that are supplemental to, or not contemplated in, this Agreement (the “Supplemental Terms”), are hereby incorporated by reference into this Agreement; and (ii) the Separate SSoP Agreement will supersede the terms of this Agreement, but only to the extent of any conflicting terms between this Agreement and the Separate SSoP Agreement.
“Customer” is the organization agreeing to this Agreement. If the Project (defined below) is being set up by someone who is not formally affiliated with an organization, the Customer is the individual creating the Project. For example, if you sign up for IntelGARD, and send IntelGARD taskings to potential partners, then you are the Customer.
If you are not a Customer but are being invited to use the SSoP by a Customer, the User Terms of Service (the “User Terms”) govern your access and use of the SSoP.
1.0 IntelGARD’s Responsibilities
1.1 Service Subscription. Subject to Customer’s compliance with this Agreement, IntelGARD will make the applicable SSoP available to Customer during the Subscription or Service Term specified in the Subscription or Order Form submitted by Customer to IntelGARD and accepted by IntelGARD (the “Subscription/Order Form”). IntelGARD will provide support for the applicable SSoP to Customer during the Subscription or ServiceTerm as provided in the appropriate Subscription/Order Form. During the Subscription or Service Term and any subsequent renewal periods, IntelGARD will use commercially reasonable efforts to make the SSoP available according to IntelGARD’s Service Level Schedule, which is available on request, and subject to planned downtime and any unscheduled maintenance.
1.2 Security and Protection of Customer Content. IntelGARD will use commercially available efforts to maintain a security program that is intended to (i) protect the security and integrity of Customer Data (as defined below); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. As part of this program, IntelGARD will use commercially available efforts to maintain administrative, physical and technical safeguards intended to protect the security of Customer Data. However, Customer acknowledges and understands that IntelGARD makes no warranties or guarantees with respect to the measures described in this paragraph.
1.3 Authorized Users. Individuals authorized by Customer to access the SSoP (each, an “Authorized User”), including Customer’s employees, contractors, suppliers, or other service providers, may submit Customer Data (as defined in Section 4.2 below), and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may provision or deprovision access to the SSoP, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign teams, or consolidate teams or projects with other teams or projects. Subject to any restriction outside these agreements, a user retains the right to use the specific information supplied by that Authorized User (“User Data”) for its own purposes. If and when an Authorized User becomes a Customer (a “User-Converted-Customer”) of IntelGARD, information previously submitted to the IntelGARD SSoP by that User-Converted-Customer when such User-Converted-Customer was an Authorized User may automatically become Customer Data for such User-Converted-Customer, and will be treated as Customer Data for such User-Converted-Customer’s account, and such information may remain User Data for the Customer for whom such information originally was supplied.
1.4. Beta SSoP. Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products may not be ready for prime time so they are made available “as is,” and any warranties or contractual commitments we make for other SSoP do not apply to any Beta Products. Should Customer encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.
1.5 Future Products and SSoP. We may share information about our future products and services. Our public statements about those product plans are an expression of intent, but should not be relied on when making a purchase. If Customer decides to buy our SSoP, that decision should be based on the functionality or features we make available on the day of purchase and not on the delivery of any future functionality or features.
1.6 Availability. We will (a) use good faith efforts to make the SSoP available to Customer and its Authorized Users as described in these Customer Terms and any applicable Subscription/Order Form; and (b) not use or process Customer Data for any purpose other than as described in our Privacy Noticewithout Customer’s prior written consent; provided, however, that Customer hereby consents to use of the Customer Data in connection with Authorized Users’ use of the SSoP and processing related to such use or otherwise necessary for the performance of the SSoP.
1.7 Third Party Service Providers. We may leverage our employees, those of our corporate affiliates and third-party contractors (collectively, the “IntelGARD Service Providers”) in exercising our rights and performing our obligations under this Agreement.
1.8 Privacy Notice. Please review our Privacy Noticefor more information on how we collect and use data relating to the use and performance of our websites and products.
2.0 Customer Responsibilities and Use of the SSoP
2.1 Customer Notices to Authorized Users. Customer will: (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the SSoP and of any settings that may impact the processing of Customer Data; and (b) obtain all rights, permissions or consents from Authorized Users, other Customer personnel, and other Customer third party service providers that are necessary to grant the rights and licenses in this Agreement and for the lawful use and transmission of Customer Data and the operation of the SSoP. Each Authorized User must also agree to the IntelGARD User Terms to activate their subscription or account and acknowledge that all User Data is also subject to the IntelGARD Privacy Notice.
2.2 Access. Customer may only access and use the SSoP, in accordance with the terms of this Agreement and the Acceptable Use Policy. Customer agrees to provide accurate and complete information when Customer registers for and uses the SSoP and agrees to update all required information promptly. Each Authorized User who uses the SSoP must have a separate username and password. Customer must provide a valid email address for each person that Customer authorizes to use Customer’s account, and Customer may only create one account per email address. Customer must provide any other information reasonably requested by IntelGARD.
2.3 Use of the SSoP. Customer must comply with this Agreement and ensure that its Authorized Users comply with this Agreement and the User Terms (including the Acceptable Use Policy). Customer hereby acknowledges our Acceptable Use Policy and guarantees compliance thereof on behalf of all its Authorized Users. Customer agrees that a breach of the Acceptable Use Policy by an Authorized User constitutes a breach of this Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. We are not responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the SSoP to store or process any Customer Data. The SSoP are not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorized Users are over 18 years old.
2.4 Removal. If we believe that there is a violation of this Agreement that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Non-IntelGARD Product, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the SSoP, Authorized Users, or any third parties.
2.5 Third Party Products. Our services may now and in the future incorporate the services of complementary products (each, a “Non-IntelGARD Product”). THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT NON-INTELGARD PRODUCTS. ULTIMATELY, CUSTOMER (AND NOT US) WILL DECIDE WHETHER OR NOT TO ENABLE THEM. ANY USE OF A NON-INTELGARD PRODUCT IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTY PROVIDER. INTELGARD HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH USAGE OF SUCH NON-INTELGARD PRODUCTS.
2.6 Other SSoP and Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SSoP, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and all uses of the Equipment. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the SSoP.
3.1 Fees and Taxes. Fees may be specified at a SSoP interface “check-out” and/or in the applicable Subscription/Order Forms, and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in any Subscription/Order Form, fees paid are non-refundable. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the SSoP be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.
3.2 Active Users. Your Subscription Form may specify a certain number of allowed “Active Users.” An “Active User” is any Authorized User in the system that has logged in and accessed the site within 180 days of any given date.
4.0 Ownership and Proprietary Rights
4.1 IntelGARD SSoP. As between Customer and us, we own and will continue to own our SSoP, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the SSoP. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license during the applicable Subscription Term for Customer and its Authorized Users to use the executable code version of these components, but solely as necessary to use the SSoP and in accordance with these Customer Terms, the Acceptable Use Policy, and the User Terms. All of our rights not expressly granted by this license are hereby retained.
4.2 Customer Data. “Customer Data” includes any information or content submitted by Customer or its Authorized Users as part of the SSoP, including messages or files. As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of this Agreement, Customer (for itself and all of its Authorized Users) grants us and the IntelGARD Service Providers a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-IntelGARD Products created by or for Customer, as reasonably necessary (a) to provide, maintain and improve the SSoP for Customer or others, including as set forth in the Privacy Notice; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license, and that it has the right to grant us all licenses to the Non-IntelGARD Products as contemplated herein. We will use Customer Data in accordance with IntelGARD’s Privacy Notice.
4.3 Usage Data. You acknowledge that IntelGARD has the right to collect and analyze data and other information relating to Customer’s usage behavior and the provision, use and performance of various aspects of the SSoP and related systems and technologies. You agree that IntelGARD will be free to (a) use such information and data to improve and enhance the SSoP and for other development, diagnostic and corrective purposes in connection with the SSoP and other IntelGARD offerings, and (b) disclose such data in aggregate or other de-identified forms in connection with its business, in each case both during and after the term of this Agreement.
4.4 Feedback. If Customer provides any suggestions, comments, ideas, improvements, or other feedback or materials related to the SSoP (collectively, “Feedback”), Customer hereby grants us a nonexclusive, royalty-free, irrevocable, perpetual right to use, display, disclose, publish, perform, reproduce, modify, license, transfer, distribute, and otherwise exploit such Feedback in any manner, including incorporation of such Feedback in updated versions of our SSoP or other product offerings or materials not licensed hereunder. Customer will be entitled to no compensation, attribution, or credit for, nor gain any right, title, or interest in or to, any materials as a result of such Feedback. In addition, IntelGARD may analyze and share derivative insights from the Customer Data or User Data shared in IntelGARD Projects, provided that we do not share or process any of the underlying Customer Data.
5.0 Term and Termination;Auto-Renewal.
Terms are described in the applicable Subscription/Order Form. If you have the option to auto-renew and you have chosen to automatically renew your subscription, you hereby authorize us to continue your subscription for additional periods equal to the initial Subscription/Service Term or as otherwise agreed (each, a “Renewal Term”), without the need to execute or submit a renewal Subscription/Order Form. Free trial subscriptions are subject to these terms but are cancelable at any time.
We will provide the same SSoP selected by you in the Subscription/Order Form during each Renewal Term. At the end of your initial Subscription/Service Term or any Renewal Term, we will automatically charge you using the same method as your original subscription for the applicable recurring subscription fees for the next Renewal Term.
The per-unit pricing during any Renewal Term will remain the same as it was during the immediately prior period. Pricing information for the SSoP is contained in your Subscription/Order Form.
You may cancel the automatic renewal of your subscription at any time by methods available at our channel partners or by sending us an email at sales@IntelGARD.com.
Our subscription fees and cancellation policy may be changed by us, but we will notify you in advance of any material changes and you will have the chance to cancel your subscription if you do not agree to the changes.
This Agreement remains effective until all subscriptions ordered under the Subscription Form have expired, been terminated or this Agreement itself is terminated. Termination of this Agreement will terminate all Subscription/Order Forms.
5.1 Termination for Cause. We or Customer may terminate this Agreement on notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Agreement caused by its Authorized Users. We may terminate this Agreement immediately on notice to Customer if we reasonably believe that the SSoP are being used by Customer or its Authorized Users in violation of applicable law.
5.2 Termination Sole Remedy. For any breach of a warranty in these Customer Terms, Customer’s sole and exclusive remedies are those described in this Section 5.
5.3. Effect of Termination. Upon termination of this Agreement, all SSoP covered by or provided under this Agreement shall immediately terminate, and Customer shall cease all use of the SSoP. Any fees that are or would be payable to IntelGARD under any Subscription Form shall become immediately due and payable by Customer.
5.4 Data Portability and Deletion. During the term of Customer’s subscriptions, Customer will be permitted to export or share certain Customer Data from the SSoP; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of SSoP plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a Customer’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.
6.0 Representations; Disclaimer of Warranties
6.1 Customer Warranties. Customer represents and warrants that it has validly entered into this Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Agreement, the Acceptable User Policy, and the User Terms.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE. WE ALSO DISCLAIM ALL EQUITABLE INDEMNITIES.
6.3 SSoP Not Legal Advice. You acknowledge and agree that: (a) IntelGARD is not licensed to engage in the practice of law in any jurisdiction; (b) IntelGARD is not a law firm and does not provide legal services; (c) IntelGARD’s personnel do not provide legal advice and are not acting as Customer’s attorneys; (d) any materials that IntelGARD provides to Customer as part of the SSoP, including but not limited to templates, forms and assessments, are neither legal advice nor guaranteed to be accurate, complete or up-to-date; and (v) Customer is encouraged to seek the advice of licensed attorneys regarding any legal compliance or other legal matters arising in connection with any SSoP. The SSoP provided by IntelGARD in connection with this Agreement or any Subscription Form are not intended to be legal advice, and you agree not to rely on them as such. WITHOUT LIMITING THE ABOVE, CUSTOMER FURTHER ACKNOWLEDGES THAT INTELGARD’S SERVICES AND SOFTWARE DO NOT CONSTITUTE LEGAL ADVICE AND ARE NOT TO BE RELIED ON AS SUCH.
6.4 Data to Third Parties. If a Non-IntelGARD Product is enabled for Customer, please be mindful of any Customer Data that will be shared with the third-party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-IntelGARD Product.
7.0 Limitation of Liability
IN NO EVENT WILL INTELGARD OR INTELGARD’S PARENTS, SUBSIDIARIES, AND AFFILIATES, AND EACH OF THEIR RESPECTIVE SERVICE PROVIDERS’ (COLLECTIVELY, THE “INTELGARD EXTENDED FAMILY”) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE SECTION 3 (PAYMENT) ABOVE.
IN NO EVENT SHALL ANY MEMBER OF THE INTELGARD EXTENDED FAMILY HAVE ANY LIABILITY TO THE CUSTOMER, USER, OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7.1 Login Credentials. The SSoP support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the SSoP. We therefore will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA. Additionally, Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third-party logging into and accessing the SSoP.
The limitations under this Section 7 (Limitation of Liability) section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this Section 7 (Limitation of Liability) section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the SSoP.
8.1 Customer’s Indemnification of Us. Customer will defend IntelGARD and the members of the IntelGARD Extended Family (collectively, the “IntelGARD Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to: (a) Customer’s or any of its Authorized User’s use of the SSoP or any Non-IntelGARD Products; (b) use of the Customer Data as permitted by this Agreement; or (c) Customer’s or any of its Authorized Users’ actual or alleged violation of this Agreement or the User Terms ((a), (b), and (c), each a “Claim Against Us”)), and will indemnify the IntelGARD Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a IntelGARD Indemnified Party in connection with or as a result of, and for amounts paid by a IntelGARD Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We will provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control of such claim, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
8.2 Limitations on Indemnifications. Notwithstanding anything contained in the preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
9.1 Confidential Information. “Confidential Information” includes anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including non-public business, product, technology and marketing information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Confidential Information of Customer includes Customer Data. Confidential Information of IntelGARD includes information about the IntelGARD SSoP, including information about how the IntelGARD platform works, and any agreements, contracts, templates or other materials provided to Customers in the course of providing IntelGARD SSoP. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with this Agreement. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and free of any confidentiality obligation; (c) is received from a third party without breach of any obligation owed to the Disclosing Party and free of any confidentiality obligation; or (d) was independently developed by the Receiving Party without use of, or reference to, any Confidential Information of the Disclosing Party.
9.2 Protection and Use of Confidential Information. The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with this Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement (provided, however, in the case of IntelGARD as the Receiving Party, IntelGARD also may collect, use and disclose Confidential Information as described in the Privacy Notice. Nothing herein will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in this Agreement.
9.3 Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
Sections 4.4 (Feedback), 7 (Limitation of Liability), 5.4 (Effect of Termination), 5.5 (Data Portability and Deletion), 6.2 (Disclaimer). 6.3 (SSoP Not Legal Advice), 6.4 (Data to Third Parties), 8 (Indemnification), 9 (Confidentiality), and 11 (General Provisions) will survive any termination or expiration of this Agreement.
11. General Provisions
11.1 Publicity. Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers or others, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. If you do not wish to be listed as a reference, please send us an email to feedback@IntelGARD.comstating that it does not wish to be used as a reference.
11.2 Force Majeure. We will not be liable by reason of any failure or delay in the performance of our obligations on account of events beyond our reasonable control, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
11.3 Relationship of the Parties; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to this Agreement.
11.4 Email and IntelGARD Messages. Except as otherwise set forth herein, all notices under this Agreement will be by email, or we may provide notice to Customer through the SSoP (e.g., a IntelGARD notification). Notices to IntelGARD will be sent to feedback@IntelGARD.com, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to contracts@IntelGARD.com. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the SSoP.
11.5 Modifications. As our business evolves, we may change these Customer Terms. If we make a material change to these Customer Terms, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the SSoP. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced herein. Any revised version of the Customer Terms will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the SSoP after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
11.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
11.7 Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.8 Assignment. Except with respect to the IntelGARD Service Providers, neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Subscription Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying IntelGARD of any changes. Any purported assignment in violation of this Section 11.8 (Assignment) is void. A party’s sole remedy for any purported assignment by the other party in breach of this Section 11.8 (Assignment) will be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Virginia, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.10 Arbitration. Any dispute arising out of or relating to the SSoP and Agreement shall be decided by confidential, binding arbitration to be administered by JAMS or its successor organization (“JAMS”) in accordance with JAMS’ then-current Comprehensive Arbitration Rules and Procedures for commercial contracts (except to the extent such rules are inconsistent with the terms hereof). The parties agree that the arbitration shall take place in Reston, VA and shall be conducted in English before a single neutral arbitrator. The parties shall mutually agree on an arbitrator, provided that if the parties cannot agree on an arbitrator within ten (10) days, each party will submit to JAMS a list of no more than three (3) potential arbitrators nominated by that party and JAMS will choose a single arbitrator from among the potential arbitrators identified in such lists. In rendering the award, the arbitrator shall apply the governing law set forth above, except where that law conflicts with this clause and except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator shall be empowered to award the prevailing party any remedy available at law or in equity not specifically precluded by this Agreement, including without limitation injunctive or declaratory relief. The award entered or decision made by the arbitrator shall be final and non-appealable, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The parties agree that the existence, conduct, and content of any arbitration hereunder shall be confidential and shall not be disclosed by either party except on the same bases as the terms of this Agreement may be disclosed as provided in Section 9 above. In addition, either party also may disclose an arbitration award to a court in order to secure confirmation or enforcement of an arbitration award. Customer agrees that Customer may only resolve disputes with us on an individual basis and Customer may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
11.11 Injunctive Relief. Customer acknowledges that its material breach of this Agreement will result in immediate and irreparable damage to IntelGARD, and that money damages alone will be inadequate to compensate IntelGARD. Therefore, in the event of a material breach or threatened material breach of any provision of this Agreement by Customer, IntelGARD may, in addition to all other remedies available to IntelGARD at law or in equity, obtain preliminary or permanent injunctive relief prohibiting such breach or compelling specific performance, in any court of competent jurisdiction, notwithstanding Section 11.10 (Governing Law) above.
11.12 Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
11.13 Entire Agreement. These Customer Terms (including the Acceptable Use Policy) and all referenced pages and Subscription Forms, if applicable, constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, unless Customer has executed a Separate SSoP Agreement with us, in which case the Supplemental Terms are incorporated into this Agreement, and such Separate SSoP Agreement will supersede the terms of this Agreement, but only to the extent of any conflicting terms between this Agreement and the Separate SSoP Agreement.
Please also feel free to contact us if you have any questions about IntelGARD’s Customer Terms of Service. You may contact us at info@IntelGARD.comor at our mailing address below:
1900 Reston Metro Plaza
Reston, VA 20190