Terms & Conditions

1. Definitions

The following terms, when used in this Agreement, will have the following meanings:

“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Partner Materials” means any data, content or materials that Partner provides to Intellica for purposes of providing the Services.

“Documentation” means Intellica’s standard usage documentation for the Services.

“Order Form” means an order form, quote or other similar document, or online ordering flow completed by Partner, in each case that sets forth the specific Services to which Partner is subscribing, pricing therefore and subscription term, and that references these Terms and Conditions.

2. Services

Provision of Services. 

Subject to this Agreement, Intellica will provide the Services to Partner pursuant to this Agreement and the applicable Order Form.  

Data Security.

Intellica will maintain a security program materially in accordance with industry standards that is designed to (a) ensure the security and integrity of Partner Materials; (b) protect against threats or hazards to the security or integrity of Partner Materials; and (c) prevent unauthorized access to Partner Materials.  To the extent that Intellica processes any Personal Data (as defined in the DPA referenced below) contained in Partner Materials that is subject to Data Protection Legislation (as defined in the DPA), on Partner’s behalf, in the provision of the Services, the Data Processing Addendum currently available at www.intellica.com/legal/dpa ("DPA") is hereby deemed part of this Agreement and incorporated herein by reference.

Partner Responsibilities.

Partner acknowledges that Intellica’s provision of the Services is dependent on Partner providing all reasonably required cooperation (including the prompt provision of access to Partner’s personnel, cooperation and materials as specified in the applicable Order Form), and Partner will provide all such cooperation in a diligent and timely manner.  As between the parties, Partner is responsible for the content and accuracy of Partner Materials.  

Telephonic Communications Laws Compliance.  

1. Partner acknowledges and agrees that (i) the Services involve Intellica sending certain text messages to Partner’s customers on Partner’s behalf (the “Partner Messages”) and Partner will provide Intellica with the name and telephone number of each of its customers to whom Intellica is authorized to send Partner Messages on Partner’s behalf, (ii) the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), and other federal and state laws including but not limited to Texas Business & Commerce Code Chapter 302 (Telephone Solicitation), as amended (collectively, the “Telephonic Communications Laws”) currently place restrictions on certain text messages and requirements upon entities making certain text messages, and (iii) Partner is solely responsible for selecting and identifying to Intellica the customers who will receive the Partner Messages, obtaining prior express written consent (as defined in Telephonic Communications Laws) (“User Consent”) to receive such Partner Messages at the applicable cellular telephone number, and compliance with all applicable Telephone Communications Laws in connection with such Partner Messages. 
2. Partner will maintain, and make available to Intellica within a reasonable time after request, records evidencing (i) the User Consent of each customer to receive Partner Messages from or on behalf Partner, and (ii) Partner’s compliance with the applicable Telephone Communications Laws in connection with the Partner Messages.  Partner will not provide Intellica with the name or telephone number of any customer who has revoked User Consent to receive text messages from or on behalf of Partner.  If a customer revokes User Consent, Partner will advise Intellica in writing of the revocation within three (3) business days so that Intellica may take prompt action to prevent additional Partner Messages to that customer.  In addition, upon Intellica’s reasonable request, Partner will cooperate with Intellica in good faith to prepare or execute such declarations, affidavits or other similar documents as may be necessary or appropriate to support Intellica’s defense of any claims against it arising relating to the Partner Messages.
3. Partner warrants that it has all rights necessary to collect and provide any information, data or other materials that it provides to Intellica hereunder, and to permit Intellica to use the same as contemplated hereunder, including that it will comply with the Telephonic Communications Laws in connection with such activities.

2. Fees

Fees.

Partner will pay Intellica the fees set forth in the applicable Order Form. Partner will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, fees paid are non-refundable. If Partner disputes an invoice in good faith, it will notify Intellica within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Intellica may provide Partner with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

Late Payment; Taxes.

Intellica may suspend the Services immediately upon notice if Partner fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Intellica has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Intellica. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Partner will be solely responsible for payment of all Taxes, except for those taxes based on the income of Intellica. Partner will not withhold any Taxes from any amounts due to Intellica.

4. Proprietary Rights

Proprietary Rights.

As between the parties, Intellica exclusively owns all right, title and interest in and to the Services, System Data and Intellica’s Confidential Information, and Partner exclusively owns all right, title and interest in and to the Partner Materials and Partner’s Confidential Information. “System Data” means data collected by Intellica regarding the Services that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Services.

Feedback.

Partner may from time to time provide Intellica suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services.  Intellica will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Intellica will have the full, unencumbered right, without any obligation to compensate or reimburse Partner, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.  All Feedback is provided “AS IS” and Intellica will not publicly identify Partner as the source of Feedback without Partner’s permission.

Product Improvements.

Partner agrees that, notwithstanding anything herein, Intellica is hereby granted the right to use Partner Materials during and after the term hereof to improve Intellica’s products and services.

5. Confidentiality; Restrictions

Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Partner will not directly or indirectly reverse engineer the Services or use or access the Services to develop a product or service that is competitive with Intellica’s products or services. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

6. Warranties and Disclaimers

Mutual.

Each party warrants that it has the legal power and authority to enter into this Agreement.

Intellica.

Intellica warrants that the Services will perform materially as described in the Documentation and will be provided in a professional and workmanlike manner (the “Services Warranty”). Intellica will use reasonable efforts to correct a verified breach of the Services Warranty reported by Partner. If Intellica fails to do so within 30 days after Partner's warranty report, then either party may terminate the applicable Order Form, in which case Intellica will provide Partner a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term (if any). To receive these remedies, Partner must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Services. These procedures are Partner’s exclusive remedies and Intellica’s sole liability for breach of the Services Warranty.

DISCLAIMERS.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. INTELLICA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR GENERATE ANY PARTICULAR RESULT. INTELLICA IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS.

7. Indemnification

Indemnity by Intellica.

Intellica will defend Partner against any claim, demand, suit, or proceeding (“Claim”) made or brought against Partner by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Partner for any damages finally awarded against Partner (or any settlement approved by Intellica) in connection with any such Claim; provided that (a) Partner will promptly notify Intellica of such Claim, (b) Intellica will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Intellica may not settle any Claim without Partner’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Partner of all related liability) and (c) Partner reasonably cooperates with Intellica in connection therewith.  If the use of the Services by Partner has become, or in Intellica’s opinion is likely to become, the subject of any claim of infringement, Intellica may at its option and expense (i) procure for Partner the right to continue receiving the Services as set forth hereunder; (ii) replace or modify the Services to make them non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Partner a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term (if applicable).  Intellica will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Partner; (B) Partner’s breach of Section 2.4; or (C) Partner Materials (clauses (A) through (C), “Excluded Claims”).  This Section states Intellica’s sole and exclusive liability and obligation, and Partner’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

Indemnification by Partner.

Partner will defend Intellica against any Claim made or brought against Intellica by a third party arising out of any Excluded Claims, and Partner will indemnify Intellica for any damages finally awarded against Intellica (or any settlement approved by Partner) in connection with any such Claim; provided that (a) Intellica will promptly notify Partner of such Claim, (b) Partner will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Partner may not settle any Claim without Intellica’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Intellica of all liability) and (c) Intellica reasonably cooperates with Partner in connection therewith.

8. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF SECTION 5, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING PARTNER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY PARTNER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  

9. Termination

Term.

The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below.  The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Termination.

Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 

Survival.

Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) except as set forth herein, each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.  

10. General

Publicity.

Partner agrees that Intellica may refer to Partner’s name and trademarks in Intellica’s marketing materials and website; however, Intellica will not use Partner’s name or trademarks in any other publicity (e.g., press releases, public customer references and public case studies) without Partner’s prior consent (which may be by email).

Amendment.

Intellica reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Partner’s next renewal of such Order Form.  It is Partner’s responsibility to review these Terms and Conditions from time to time for any modifications. If Partner does not agree to the modified Terms and Conditions, Partner may provide notice of Partner’s non-renewal at any point prior to the Partner’s next renewal.  Except as set forth in this Section, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties.  

Waiver; Assignment.

No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

Relationship.

Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.  In addition, Partner agrees that Intellica may have a separate, independent relationship with such customers pursuant to the Terms of Service and Privacy Policy that are agreed upon and acknowledged by such customers (and Intellica will be considered the ‘controller’ or ‘business’ (as defined under applicable privacy laws) with respect to all personal data provided by or collected from such customers in this context), and nothing contained herein will limit Intellica’s rights thereunder in relation to such customers.

Governing Law.

This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

Entire Agreement.

This Agreement (consisting of these Terms and Conditions and each Order Form) comprises the entire agreement between Partner and Intellica with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Intellica, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.  In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form will control.

Force Majeure.

Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

Miscellaneous.

For purposes hereof, “including” means “including without limitation”. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.  Any notice required or permitted to be given hereunder will be given in writing by certified mail, return receipt requested, or overnight delivery to the mailing address on the applicable Order Form and/or, if applicable, by email to the email address on the applicable Order Form, or such other address designated pursuant to this Section.