INTELEX TERMS OF SERVICE

1. Scope

These Terms of Service (“TOS”) shall be effective upon execution of an “Order” and/or statement-of-work (“SOW”) between Intelex Technologies, ULC (“Intelex”) and the “Customer” identified in the corresponding Order/SOW (each a “Party”).  These TOS shall govern the delivery and use of “SaaS Services” and/or “Professional Services” as described in a corresponding Order/SOW.  The TOS will terminate upon expiration, non-renewal, or termination of all Order(s) and SOW(s) between the Parties.

2. Services—Usage & Data

2.1. Usage.  Intelex grants Customer the right to access Intelex’s software, SaaS, applications, etc. (collectively, “Platform”) to use the Services during the subscription term(s) described in corresponding Ordering Document(s).  Intelex will provision logins/passwords for the of users identified in each Ordering Document (“Users”).

2.2. Usage Restrictions.  Customer’s confidential User credentials shall not be shared, transferred, or sublicensed, and Customer shall notify Intelex of any unauthorized use of Services.  Customer shall not use any device, software, or routine that interferes with or imposes a disproportionate burden on the Platform, and Customer is responsible for Users’ use of the Services. Customer shall not: (a) sub-license, sell, rent, or distribute the Services, or any underlying intellectual property rights; (b) reverse engineer, de-compile, disassemble or create any derivative works of the Services or Platform; or (c) knowingly or negligently infect the Services or Platform with viruses, files, or programs that interrupt, destroy, or impair the Services or Platform.

2.3. Customer Data.  Data that Customer stores on the Platform in connection with the Services (“Customer Data”) shall constitute Confidential Information as described below.  Customer owns all right and title to Customer Data.  To the extent Customer Data includes personally identifiable information (“Personal Information”), Customer is responsible for complying with applicable legal requirements (e.g. providing employees with required notice and/or consent).  Customer shall not store Customer Data on the Platform that violates the rights of any third party.  During the term of this TOS, Customer grants Intelex a limited right to access and use Customer Data to deliver the Services.  In response to Customer’s written request, Intelex will return Customer Data to Customer.  Intelex will permanently delete all Customer Data from the Platform ninety (90) days after termination of this TOS.

2.4. Aggregated Data.  Intelex may aggregate Customer Data in deidentified, anonymized forms (“Aggregated Data”) to facilitate Service delivery, provide technical support, and prepare usage, benchmarking, and analytics models.  Aggregated Data shall not include Personal Information or information that identifies Customer.  Intelex’s creation and use of Aggregated Data shall comply with all applicable privacy laws and regulations.

2.5. Content.  As provided under an Ordering Document, Intelex may deliver regulatory/industry information as part of the Services (“Content”).  Content may be written information, data compilations, templates, reports, etc. that are produced by Intelex and/or Intelex’s partners.  Intelex provides Content as-is and licenses Content to Customer in connection with the Services.  Customer agrees not to copy, transmit, sublicense, or disseminate the Content outside the scope of the Services.

2.6. Overages.  If Customer exceeds its licensed number of Users or storage capacities described in Ordering Documents, Customer will pay Intelex its then-current and standard fees to account for such overage.  Thereafter, Customer shall either: (a) reduce its usage to meet its original limitations; or (b) execute a revised Ordering Document to account for the increased usage going forward.

3. Services—Technical Support.

3.1. Uptime.  Services that are delivered via the Platform shall be accessible to Customer 99.9% of the time (“Uptime”), as calculated monthly on a 24/7 basis.  Intelex shall remedy any failure to meet its Uptime commitment by providing the Service credits outlined below in Customer’s next applicable Services invoice, or—if no additional invoices shall be issued due to expiration/termination—by way of electronic fund transfer.

Actual Monthly Services Uptime
Customer’s Monthly Service Credit
99% to 99.89%
3%
98% to 98.99%
6%
97% to 97.99%
10%
< 97%
20%

3.2. Exempt Downtime.  Due to the nature of maintaining the Platform, there may be periods where Services are necessarily unavailable to Customer.  Whenever possible, Intelex will schedule maintenance during periods of low Services usage/activity.  Intelex will provide Customer with at least two (2) weeks’ notice prior to routine maintenance.  Intelex will provide Customer with as much notice as possible for emergency/unplanned maintenance.  Customer should promptly notify Intelex if it experiences Services downtime due to failures of Customer’s infrastructure/network or nonstandard, unauthorized changes/modifications made by Customer, and Intelex will work diligently with Customer to resolve such disturbances.  The foregoing “Exempt Downtime” shall be excluded from Uptime calculations.

3.3. Application & Platform Updates

3.3.1.
From time to time, Intelex will deliver to Customer new versions of and/or patches to (a) specific “Applications” used to deliver the Services, and (b) the underlying Platform (collectively, “Updates”).  Such Updates will address performance, reliability, and security issues, as well as instances where the Services, Applications, or Platform fail to function as intended (“Defect[s]”).  Updates will not materially diminish or alter key functionality of the Services but may alter the look/feel of the Application(s) and/or Platform.  Customer acknowledges that Updates are necessary for the continued maintenance and proper function of Services, Applications, and Platform.  To the extent an Update requires action from Customer, Intelex and Customer will coordinate to plan and execute the Update.  Absent issues caused by Customer’s unique, non-standard configuration of Applications, Updates shall be provided at no charge to Customer.

3.3.2.
Intelex shall support the twelve (12) most recent versions of any Application delivered as part of the Services (“Supported Versions”).  Intelex will provide advanced and immediate notice to Customer if a non-Supported Version will be discontinued due to functional, security, and/or commercial considerations.  In such case, Intelex will work with Customer to manage the sunset process and transition Customer to a Supported Version under terms similar to Customer’s then-current Agreement.  Customer acknowledges that continued use of non-Supported Versions after the sunset date may expose Customers to security vulnerabilities and/or performance degradation.

3.4. Customer’s Support Requests

3.4.1.
Customer may appoint up to five (5) designated “Support Contacts” who can submit support requests and work with Intelex to resolve errors, malfunctions, faults, or other Defects in connection with the Services.  This “Support” is provided remotely each business day from 4:00 AM ET to 8 PM ET by Intelex’s support personnel in Canada, the United Kingdom, the United States, the EU, and Brazil.  Customer’s Support Contacts may request Support by submitting a service ticket or—if they are unable to do so—calling Intelex using the information at: www.intelex.com/contact-us.  Severity 1 Defects can be reported 24/7/365 by submitting a Sev-1 ticket or contacting the Sev-1 hotline at (416) 847 8985.  Any onsite Support will be agreed to in an SOW.

3.4.2.
Customer acknowledges that resolving Support requests for non-Supported Versions of the Services may require Customer to complete an Update(s).

3.4.3.
Intelex’s Support of the Services shall comply with the following SLA:

Severity
Definition
Response Target
Level 1 Services are completely unavailable (i.e. all users are unable to access web/mobile application; records cannot be submitted) 30 minutes from Customer’s notice (24x7x365) and four (4) hour resolution target
Level 2 Services are available, but a defined area of function is not operating as intended (e.g. inability to run reports, manage records, send communications, or execute scheduled events; a subset of users cannot access Services) One (1) business day from Customer’s notice
Level 3 Services are available, but a subset of a defined area of function is not operating as intended (e.g. a subset of reporting, record management, communications, and/or scheduled events is malfunctioning) Three (3) business days from Customer’s notice
Level 4 General administrative/procedural inquiries unrelated to immediate and ongoing use of Services Five (5) business days from Customer’s notice

3.4.4.
Notwithstanding the prior section, Intelex’s Support of the Asset & Compliance Tracking System (“ACTS”) shall comply with the following SLA:

Severity
Definition
Response Target
Level 1 The ACTS SaaS Service prod environment is completely unavailable (i.e. all users are unable to access web/mobile application; records cannot be submitted; batch services are inoperable; FTP for data exchange is inoperable) One (1) hour from Customer’s notice
Level 2 The ACTS Services in the prod environment are available, but a defined area of function is not operating as intended (individual batch jobs/reports are inoperable; inability to submit/edit records in a module; inability to send notifications; a subset of users cannot access Services) One (1) business day from Customer’s notice
Level 3 Any ACTS SaaS Service defect that does not qualify as Sev-1 or Sev-2 (e.g. inability to close a record, advance workflow, or modify fields; emails or notifications are not generated or sent; non-critical errors that do not preclude otherwise normal function) Three (3) business days from Customer’s notice.
Level 4 General administrative/procedural inquiries unrelated to immediate and ongoing use of Services Five (5) business days from Customer’s notice

4. [RESERVED]

5. Services—Information Security & Data Privacy

5.1.
Data Protection.  To maintain the security, confidentiality, and integrity of Customer Data, Intelex utilizes and regularly monitors administrative, physical, and technical safeguards of the Platform and Services to meet or exceed the industry standards described at www.intelex.com/security-and-compliance/.

5.2.
Penetration Testing.  Intelex regularly tests its security safeguards, including through penetration and/or vulnerability testing, and Intelex shall make such reports available to Customer upon request. If Intelex fails to provide a requested report, Customer may conduct its own penetration test, provided that: (a) the timing of such testing is mutually agreed upon; (b) testing is on the most recent version of the relevant Application(s) and/or Platform; and (c) Intelex is solely responsible for the manner in which vulnerabilities are remedied.

5.3.
Privacy Compliance.  In delivering the Services, Intelex shall comply with all applicable privacy laws, regulations, and standards.  {Intelex’s and Customer’s roles and responsibilities concerning the use and processing of Customer Data are more fully described in the Parties’ Data Processing Addendum.}

6. Professional Services. 

To implement and/or facilitate Customer’s use of Services, Customer and Intelex may execute SOW(s) covering implementation services, customization/configuration services, third-party integrations, training, administrative quality-assurance, consulting services, etc. (“Professional Services”).  Except as otherwise noted in an applicable SOW, the terms of this TOS shall apply to Intelex’s delivery of Professional Services.

7. Fees & Taxes.

7.1.
Invoices.  The Parties’ Ordering Documents set forth Intelex’s fees (“Fees”) for Services.  Each Intelex invoice will be due and payable in accordance with the applicable Order and/or SOW.

7.2.
Suspension.  If any undisputed amounts owed by Customer remain outstanding more than fifteen (15) days after receiving notice of non-payment, Intelex may—in its sole discretion—withhold performance and discontinue Service until all undisputed, past-due amounts are paid in full.

7.3.
Taxes.  All Fees are exclusive of government taxes, duties, levies, etc. (“Taxes”).  Intelex is responsible for all Taxes related to Intelex’s income/profit from servicing Customer.  If applicable, Customer is responsible for any Taxes related to its use of Intelex’s services (e.g. sales tax, VAT, use tax, withholding tax, etc.)  If Customer is exempt from otherwise applicable Taxes, it shall furnish Intelex a certificate of exemption prior to use of the Services and/or Professional Services.

8. Termination.

If either Party materially breaches the terms of any Ordering Document or these TOS (“Breach”), the non-breaching Party shall provide written notice identifying the alleged Breach and allow the breaching Party a period of thirty (30) days to remedy the Breach (“Cure Period”).  If the Breach remains unresolved following the Cure Period, the non-breaching Party may immediately terminate the applicable Ordering Document(s).  Upon such termination: (a) Customer shall cease use of the Services described under the terminated Ordering Documents; (b) Intelex shall cease providing Professional Services described under the terminated Ordering Documents; (c) where Intelex has caused the Breach, it will refund Customer’s Fees for the remainder of the unused subscription period; and (d) Customer shall pay existing and unbilled invoices for Professional Services performed by Intelex as of the date of such termination.

9. Confidentiality. 

“Confidential Information” is any data, information, or materials that are identified as confidential, or which should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding disclosure.  Both Parties shall protect the other’s Confidential Information with at least the same level of protection used in safeguarding its own Confidential Information, and neither Party shall disclose, distribute, or disseminate the other’s Confidential Information.  Confidential Information shall not include information that becomes publicly available without breach of any obligation hereunder or was already known by the Party receiving it.

10. Warranties.

10.1.
General Warranty. Except as otherwise provided in the TOS, Intelex warrants that any Services, including Professional Services, delivered to Customer will materially conform to descriptions set forth in the applicable Ordering Document(s) and this TOS.  Except as otherwise provided in the TOS, Intelex further warrants that all Services, including Professional Services, shall be performed in a professional manner consistent with applicable industry standards and comply with all applicable laws. As Intelex’s exclusive liability and Customer’s exclusive remedy for any breach of these warranties, Intelex will use commercially reasonable efforts to correct any non-conformity. If Intelex is unable to do so, Intelex may terminate the Order and return any prepaid Fees for such defective Services for the period commencing from Customer’s notice of nonconformity. Intelex will have no obligation under this Section 10 to the extent any alleged breach of warranty is caused by: (a) any Customer-deployed, third-party software that interferes with the proper functioning of the Services; or (b) issues resulting from or arising out of professional services performed by a party other than Intelex or its approved partners.
10.2.
Non-Infringement Warranty.  Intelex warrants that Customer’s use of the Services shall not infringe the intellectual property (“IP”) rights of any third party.
10.2.1.
In the event Customer faces a claim for IP infringement based upon its use of the Services (“IP Claim”), Intelex will:
10.2.1.1.
Defend Customer—at Intelex’s sole expense—and pay all costs, damages, and/or settlement amounts, provided that Customer: (a) promptly notifies Intelex in writing of such IP Claim; (b) transfers control of the defense and related settlement negotiations to Intelex; and (c) reasonably cooperates with and assists Intelex in the defense of such IP Claim; and/or
10.2.1.2.
otherwise resolve the IP claim by: (a) replacing or modifying that portion of the Services to avoid the IP Claim; (ii) procure the right for Customer to continue using the Services; or (iii) terminate that portion of the applicable Order Form corresponding to the IP Claim and refund to Customer a pro rata amount for the unused subscription period.
10.2.2.
The obligations in the preceding section shall not apply if the IP Claim is based on Customer’s: (a) unauthorized use or modification of the Services; (b) use of the Services in combination with any software, data, content or hardware not provided or approved by Intelex; or (iii) customized, non-standard use or integration of the Services as specifically requested by Customer.
10.2.3.
THE FOREGOING REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PROVIDER’S ENTIRE LIABILITY AND OBLIGATION WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
10.3.
Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN the immediately preceding SECTIONS, INTELEX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TOS OR THE SERVICES, including ANY PROFESSIONAL SERVICES, AND INTELEX HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  INTELEX DISCLAIMS ANY WARRANTY THAT THE SERVICES, including professional services, PROVIDED WILL BE ERROR FREE OR UNINTERRUPTED.  INTELEX SHALL HAVE NO LIABILITY ARISING FROM ANY ACTIONS TAKEN BY INTELEX AT CUSTOMER DIRECTION OR CUSTOMER’S USE OF any third-party products, services, software or websites that Customer may choose to integrate or use with the SERVICES.

11. Limitation of Liability. 

Notwithstanding anything to the contrary, neither party will be liable to the other for any consequential, special, indirect, OR punitive damages, and Intelex’s maximum liability will not exceed TWO TIMES THE FEES PAID BY CUSTOMER TO INTELEX DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING ANY CLAIM.  THE FOREGOING LIMITATIONS APPLY REGARDLESS OF: (A) THE UNDERLYING BASIS OF ANY ALLEGED LIABILITY/CLAIM; (B) WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (c) ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. General Provisions.

12.1.
Compliance with Laws.  Customer is responsible for using Services in a manner that complies with all applicable laws, sanctions, and regulations. Customer will not permit use of Services in a manner: (a) violating export control regulations or economic sanctions, including the export and import laws of Canada, the United States, the European Union, and any other applicable country; or (b) supporting the development, production, handling, operation, maintenance, storage, detection, identification, or dissemination of chemical or biological weapons, nuclear explosive devices, missiles, or naval nuclear propulsion activities. Intelex reserves the right to limit Customer access to Services if providing the same would violate any applicable law, sanction, or regulation.

12.2.
Subcontractors: Intelex subcontractors host the Services and provide certain other technical support and administrative services. Intelex will provide a list of current subcontractors upon Customer’s request. Subject to the terms of the TOS, Intelex is responsible for the actions of its subcontractors that are directly related to the Services. Intelex represents and warrants that it has completed stringent due diligence to ensure that each of its subcontractors is capable of meeting the requirements set forth in the TOS and has entered into written agreements with subcontractors to enforce the same.  Intelex does not employ, use, or otherwise contract with any individual or company on the OIG List of Excluded Individuals or Entities or otherwise prohibited by U.S. Sanctions Programs identified by the Office of Foreign Assets Control.

12.3.
Risks.  Except for payment obligations, neither Party shall be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, pandemic, electrical interruption, server or related equipment failure and internet disturbance) that was beyond such Party’s reasonable control.

12.4.
Assignment.  Upon thirty (30) days’ written notice to the other, either Party may assign or transfer pending Ordering Document(s), along with these underlying TOS, to its affiliate or successor in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any such assignment may occur only where the assigning party: (a) is not in breach of any Ordering Document(s) or these TOS; and (b) the successor assignee has agreed—in a writing with the non-assigning Party—to assume all obligations of the assigning Party hereunder. Any attempted assignment or transfer in violation of the foregoing will be void.

12.5.
Subcontractors.  Intelex will be responsible for the actions of its subcontractors involved in the delivery of Services, including Professional Services.

12.6.
Communications.  Neither Party shall use the other’s name in connection with advertising or publicity without said other Party’s prior, written consent. Each Party agrees not to make any representations about the other Party without first obtaining said other Party’s written consent. Notwithstanding the foregoing, either Party may include the other’s name and logo on its corporate website and/or corporate social-media applications in connection with identifying the other Party as a supplier or customer.

12.7.
Choice of Law and Venue.  All disputes between the Parties shall be governed by the laws of the Commonwealth of Pennsylvania, excluding any conflicts of law considerations and the United Nations Convention on Contracts for the International Sale of Goods.  The Parties agree that the notice provisions hereunder shall suffice for the purposes of satisfying service-of-process requirements arising under the Federal Civil Rules of Procedure or related state laws.

12.8.
Integration.  These TOS—along with any corresponding Ordering Documents—constitute the Parties’ complete and integrated Agreement.  The commercial terms of any Ordering Documents will control over any conflicting terms herein.  This TOS—as well as any Ordering Documents—may be amended only by a written instrument accepted by both Parties.  A Party’s failure to exercise any of its rights under on one occasion shall not waive its rights to enforce the same on another occasion.

12.9.
Export Restrictions. Neither Customer nor its Users shall export, reexport, transfer, or use the Services in violation of any applicable export or import laws, economic sanctions laws, or other applicable laws.

12.10.
Survival. The following sections of the TOS shall survive termination: 2.2-2.4, 4, 8, 9, 11, and 12

12.11.
Notice.  Required notice(s) under the TOS shall be in writing and delivered by both: (a) courier and (b) email, as set forth below:

Customer’s notice to Intelex:

  1. Intelex Technologies, ULC
    ATTN: Legal Dept.
    70 University Ave, Suite 900
    Toronto, ON M5J 2M4, Canada
  2. [email protected]

Intelex’s notice to Customer:

  1. Customer’s physical address identified on the applicable Order and/or SOW.
  2. Customer’s contact email address identified on the Order applicable Order and/or SOW.