Intralinks® Service (the "Service"). By accepting this Agreement, you agree to be bound by and abide by its terms and conditions. Your use of the Intralinks Service indicates your continued acceptance of this Agreement. You agree that the electronic acceptance of this Agreement is intended to have the same force and effect as if this Agreement were physically signed. If you do not accept these terms and conditions, you should click the 'decline' button and promptly destroy or delete any materials in your possession relating to the Service. In this Agreement, the words "you" and "your" refer to the person accepting this Agreement, and "Intralinks®" or "Intralinks" refers to Intralinks, Inc. and its affiliates.
1. ACCESS TO THE INTRALINKS SERVICE
The Service is an Internet-based hosted platform designed to enable business communities to share information through a central hub. You can access the Service through Intralinks' web site, through standalone software utilities designed for use with the Service, or through certain web portals branded by a third party. You have been added to the Service as a user (an “End User”) and have been assigned an Intralinks ID and password. The terms of this Agreement shall also apply to your use of any aspect of the Service in the future.
You may not acess the Service if You are our direct competitor, except with our prior consent. In addition, you may not access the Service for any competitive purposes.
The Service includes but is not limited to any images, "applets", photographs, animations, video, audio and text incorporated into the Service by Intralinks, the "look and feel" of the Service, and any proprietary software provided to you by Intralinks for the purpose of accessing and using the Service. The Service also includes any Intralinks archive of data from the Service copied to a DVD, FTP site or other storage device (an "Archive") to which you have access. The Service does not include any data or materials posted to the Service by you or any other End Users, such as the text of, or attachments to, a publication, comment or work stream (such data and materials collectively, "End User Data").
Intralinks grants you a non-exclusive, non-sublicensable, revocable, non-transferable, limited right and license (the "License") to access the Service (either via a web site or via a standalone software utility) in order to participate in the business being conducted through the Service. You warrant and represent that you will only access and/or use the Service, End User Data, and/or other resources on the Service to which you have been granted authorized access via the Service. You further warrant and represent that you will use the Service solely for business purposes. Your use of a standalone software utility to access and use the Service will also be governed by and will be in accordance with the terms of this Agreement. Standalone software utilities may include automatic update technology designed to automatically download updates to the utility to your computer, and you consent to the receipt of such updates. This End User Agreement will apply to all use of the Service using your Intralinks ID and password (and any use of the Service by you via a standalone software utility configured to access the Service with a "role" Intralinks ID and password).
You understand and agree that the License and your Intralinks ID and password are only granted to the individual accepting this Agreement. You agree to take all reasonable and prudent steps not to let any other person learn or use the ID or password assigned to you except Intralinks customer support staff as necessary. You also agree that you will neither register nor use any ID for group purposes or as a role account (nor permit the same). Intralinks may block access to the Service without notice for any ID used for group purposes or as a role account. No service bureau work, multiple-user license, or time-sharing arrangement for the use of the Service is permitted, except as expressly authorized by Intralinks in writing.
Access to the Service is provided via the Internet through the World Wide Web. You are required to supply all software or hardware needed by you to access the Service, such as a computer, an Internet connection, and compatible Web browser software. In addition, you may be required to download and/or install additional software (e.g., certain software plug-ins or software applications) in order to access certain data on the Service.
The Service may contain one or more hyperlinks to third-party websites and services. Intralinks and the party that invites you as an End User are not responsible for information gathered from, or the use of, any of these third-party websites and services.
2. OWNERSHIP OF THE INTRALINKS SERVICE
Intralinks is only providing you with the right to access and use the Service. Intralinks retains sole and exclusive ownership of and all right, title, and interest in and to the Service (including ownership of all trade secrets, trade dress, copyrights, and other intellectual property rights pertaining to the Service, but not including any End User Data) and to all modifications and enhancements of the Service, subject only to the rights and privileges expressly granted to you by Intralinks through this Agreement. In addition, the Service is presented with a distinctive "look and feel," and this "look and feel" is the proprietary property of Intralinks. Intralinks reserves all rights in and to the Service not expressly granted under this Agreement. You must not place any claims, liens, or encumbrances on the Service.
The Service is protected by U.S. copyright, patent and other U.S. and international laws and international treaty provisions. You may not use, copy, modify, or distribute the Service (electronically or otherwise), including the source code for any portion of the Service, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Intralinks hereunder or otherwise in writing.
You may not modify, reverse engineer, disassemble, decompile, translate, create derivative works from, or otherwise alter the Service, except where such action is necessary to develop an independent interoperable program (and in such circumstances such action shall only be permitted on the prior written consent of Intralinks, such consent not to be unreasonably withheld or delayed). You may not transfer, lease, assign, rent, or sublicense the rights granted to you under this Agreement, or make the Service available for the use of other persons through your User ID. You may not use any portion of the Service or any standalone utility provided for use with the Service for any purpose other than its intended purpose.
You must not use the Service to harm others or the Service. For example, you must not use the Service to harm, threaten, or harass another person, organization, or Intralinks. You must not: damage, disable, overburden, disrupt or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Intralinks) to access or use the Service. In addition, you promise that you will not and will not encourage or assist any third party to:
(a) remove, obscure or alter any proprietary rights notice pertaining to the Service;
(b) use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate End User Data, such as End User Data: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any End User Data that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(c) access or attempt to access Intralinks' other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
(d) cause, as determined by Intralinks’ in its sole discretion, inordinate burden on the Service or Intralinks' system resources or capacity.
You acknowledge that the Service (including without limitation standalone software utilities and documentation) has been developed by Intralinks at great expenditure of time, resources, and money and are considered proprietary and confidential by Intralinks. Therefore, you undertake that except as needed to use the Service, you will not disclose details about the Service to any third party and will exercise the highest reasonable degree of care to safeguard the confidentiality thereof. You may only use or disclose any personally identifiable information about other End Users of the Service that you first learn through your use of the Service for business purposes related to the transaction or project being effectuated through the Service. This Confidentiality section does not cover your disclosure of End User Data, but your ability to disclose End User Data may be governed by other confidentiality obligations.
Intralinks is committed to maintaining the confidentiality of End User Data. Intralinks will only access and process End User Data (a) upon the request of the Intralinks client for whom the Service has been provided; (b) at the direction of an End User granted access to that data (e.g., in furtherance of delivery of the Service or performance of related customer support functions); or (c) as otherwise required by applicable law. Intralinks also may use and disclose statistical data regarding the use of the Service; however, no End User, client or particular transaction shall be identified in connection with such statistics.
4. TERMINATION; ACCESS TO SERVICE
Either you or Intralinks may terminate this Agreement, your access to the Service (in whole or in part), or your right to use any standalone software utility at any time with immediate effect by providing notice of such termination to Intralinks or the party who has contracted with Intralinks for the Service. (As an example without limiting the foregoing, if the party contracts with Intralinks to purchase an Intralinks Exchange and subsequently closes that exchange, you will no longer be allowed to access that exchange, and your access to that exchange will be terminated.) Without limiting the foregoing, Intralinks may immediately suspend your access to the Service or any utility used by you to access or use the Service if your use of the Service or that utility (a) may, in our reasonable opinion, impair the ability of other End Users to access or use the Service, or (b) is, in our reasonable opinion, in violation of any federal, state, local, or foreign laws, rules, regulations, and ordinances.
Upon termination of this Agreement, the License granted pursuant to this End User Agreement will terminate, and you must immediately cease all access to and use of the Service through any means. Upon termination of this Agreement for any reason or upon discontinuance or abandonment of your use of the Service, you must promptly destroy all materials in your possession pertaining to the Service (including all copies thereof and any proprietary software Intralinks provided to you, but not including any End User Data which is rightfully in your possession). You agree to promptly provide Intralinks with written certification of your compliance with the terms of this paragraph upon Intralinks' request.
5. COMPLIANCE WITH LAWS
You acknowledge and agree that your access to and use of the Service may be subject to applicable foreign, federal, state and/or local laws, ordinances, rules, and regulations, including without limitation, the rules and regulations of foreign, federal, state, and/or local agencies, such as the Federal Communications Commission and/or the Securities and Exchange Commission (each such agency, a "Regulatory Agency"). You agree to comply with all laws, ordinances, rules, regulations, and/or requirements imposed by any government or Regulatory Agency on your use, transmission, and disclosure of any data or information via the Service. You also represent and warrant that any data, media, or other content you disseminate through the Service does not violate the intellectual property rights or other rights of any third party.
6. LIMITED WARRANTY
You acknowledge that neither Intralinks nor any other third party partner or agent of Intralinks involved in the provision of the Service (each such third party, a "Third Party Provider") can ensure that the operation of, performance of, and/or access to the Service will be uninterrupted or error-free. As your exclusive remedy for any material defect in the Service provided hereunder, Intralinks will attempt through reasonable efforts to correct or cure any such reproducible and documented material defect. Intralinks will not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Service (a) if caused by software or other equipment used by you which has not been provided by Intralinks; (b) if you have made any changes whatsoever to the Service; (c) if the Service has been misused or damaged in any respect; or (d) if you have not reported to Intralinks the existence and nature of any such nonconformity or defect promptly upon discovering it.
Intralinks does not and cannot control the flow of data to or from the Service, as such flow depends in large part on the performance of computer hardware and Internet services and software provided or controlled by third parties (including you), on the public Intranet infrastructure, and on other events beyond the reasonable control of Intralinks. At times, action or inaction of third parties, hardware/software problems with the public Internet infrastructure or with your computing equipment, or other events beyond the reasonable control of Intralinks can impair or disrupt your connection to the Service. Save as specified in the foregoing paragraph, Intralinks will not be liable for any such interruptions in your ability to access the Service resulting from or related to such services, software, or events.
You acknowledge and agree that Intralinks shall not be responsible for the content of End User Data or the modification, use or publication of End User Data by you or any other End User or third party (other than Intralinks' agents and subcontractors). Intralinks shall not be responsible for the accuracy, nature, content or completeness of information obtained by you from the Service (including, for example, from any Intralinks Exchange).
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS LICENSED TO YOU "AS-IS," AND INTRALINKS DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED PROMISES, REPRESENTATIONS, AND WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, INCLUDING BUT NOT LIMITED TO ITS CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, ITS COMPATIBILITY WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, WARRANTIES OF TITLE, AGAINST INFRINGEMENT, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You acknowledge that the transmission of data via the Service is subject to the likelihood of human and machine errors, omissions, delays, and losses (including but not limited to viruses or inadvertent loss of data or damage to media) that may give rise to loss or damage. Intralinks will not be liable for any such errors, omissions, delays, or losses, except to the extent caused by its gross negligence or willful misconduct (and subject to all other terms and conditions of this Agreement).
When an End User accesses data on the Service (e.g., a publication, comment, or attachments to a publication or comment), a copy of that data is copied to that user's local computer (this is called "caching" and is part of how web browsers work). Caching is used to improve the speed of the Service when you repeatedly access graphics or data during a session. Once pages and/or data have been cached on your local computer that data is beyond the control of Intralinks, and may be accessible to anyone with access to your computer. Each End User assumes all risk and liability associated with any data cached to that End User's local computer. Intralinks strongly recommends that you empty your web browser cache when you log out of an Intralinks session to ensure that any cached files from your Intralinks session are deleted from your computer. For assistance with emptying the cache on your web browser, please call Intralinks' customer care.
The Service should only be used as a conduit for information, not as primary information storage. As an End User, you are responsible for adopting reasonable measures to limit the impact of data loss (such as corruption or virus infection), including (a) keeping on your local computer backup copies of data you transmit via the Service in the event you have to re-transmit the data; (b) verifying the data in documents or other materials before transmitting them via the Service; and (c) verifying that documents and other information you have posted to the Service has been properly posted and have been permissioned to only those persons to whom you wish to grant access. You also understand that other End Users with appropriate access rights may have access to End User Data you transmit through the Service. You shall also run antivirus software on any computer you use to access the Service and shall ensure that documents and files transmitted through the Service have been scanned for viruses.
9. DISCLAIMER OF LIABILITY
IN NO EVENT WILL INTRALINKS (INCLUDING ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENT) OR ANY THIRD PARTY PROVIDER BE LIABLE TO YOU IN RELATION TO THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REVENUES OR SAVINGS, LOSS OF DATA OR COSTS OF RECREATING LOST DATA) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF INTRALINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE.
FURTHER, THE AGGREGATE LIABILITY OF INTRALINKS (INCLUDING ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) AND ANY THIRD PARTY PROVIDER TO YOU IN RELATION TO THIS AGREEMENT WILL NOT IN ANY EVENT EXCEED THE AGGREGATE AMOUNT OF ONE THOUSAND DOLLARS ($1,000.00). THE FOREGOING NOTWITHSTANDING, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR OTHERWISE LIMIT ANY LIABILITY FOR (A) PERSONAL INJURY OR DEATH CAUSED DIRECTLY BY THE NEGLIGENCE OF INTRALINKS OR A THIRD PARTY; OR (B) FRAUDULENT MISREPRESENTATION; OR (C) WILLFUL MISCONDUCT. THE FOREGOING LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER.
Without limiting the foregoing, in no event will any third party involved with or assisting in the marketing and/or development of the Service have any responsibility or liability for any claims or damages whatsoever in any way connected to the Service or their use, whether in tort or otherwise. The provisions of this Section 9 will operate for the benefit of and may be enforced by any such third party.
10. INDEMNIFICATION RELATING TO POSTED DATA
If you post End User Data to the Service for other End Users to view, you will hold harmless and indemnify Intralinks from and against any and all damages, losses, costs and expenses (including reasonable attorneys' fees) incurred by Intralinks in connection with any action or proceeding brought by a third party (excluding subcontractors and agents of Intralinks) that is based on any material violation by you of any applicable law, regulation, third party right or third party agreement governing the posting or use of such End User Data.
11. EXPORT OF STANDALONE UTILITIES
If you are provided with any standalone software utilities for use with the Service, you acknowledge that these utilities may be subject to regulation by applicable laws and United States government and other governmental agencies which prohibit export or diversion of certain products, information about the products, or direct products of the products to certain countries and certain persons. You represent and warrant that you will not export or re-export the software provided as part of the Service in violation of these regulations to a national destination prohibited under these regulations or to any person to whom exports, re-exports or transfers are prohibited under these regulations.
You acknowledge that your breach of any of the provisions of this Agreement may cause immediate and irreparable harm to Intralinks for which Intralinks may not have an adequate remedy in money or damages. Intralinks will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and will be entitled to recover from you the costs incurred in seeking such an injunction. Intralinks' right to obtain injunctive relief will not limit its right to seek or obtain further remedies.
This Agreement is governed by, and construed in accordance with, the laws of the State of New York, United States of America, without regard to conflict of law rules. The parties hereto (a) consent to the exclusive jurisdiction of the Supreme Court of the State of New York and of the United States District Court for the Southern District of New York, and (b) consent that any process or notice or motion or other application to the court or judge thereof may be served within or without the State of New York by registered or certified mail or internationally-recognized courier service, or by personal service, provided a reasonable time for appearance is allowed.
You may not assign, novate or otherwise transfer any rights or obligations under this Agreement without Intralinks' prior written consent. Any attempted or purported assignment, delegation or other transfer by you without such consent shall be void.
All provisions of this Agreement which expressly or by implication continue to govern the parties' rights and obligations after termination of use of the Service shall survive notwithstanding completion of any transaction or project in connection with which the Service is used or deletion of any Intralinks® Exchanges to which you are given access.
Each party acknowledges and agrees that you may use the Service in your capacity as an employee, officer, director, member (in the case of a limited liability company) or partner of a company, partnership or other organization (an "Employer"). If your Employer has a written agreement with Intralinks in place for the use of the Service, the terms of such written agreement will prevail over any inconsistent terms of this Agreement relating to the use of the Service by you on Employer's behalf. Except as otherwise specified in a written agreement with an Employer, this Agreement is the complete and exclusive statement of the agreement between you and Intralinks and supersedes any and all other proposals or agreements, written or oral, and any other communications between you and Intralinks relating to your use of the Service (and you shall have no right of action (except in the case of fraud) against Intralinks in connection with any such proposals, agreements or communications). If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such holding will not impair the validity, legality, or enforceability of the remaining provisions. No waiver by Intralinks of any breach of any term or condition of this Agreement will constitute a waiver of, or consent to, any subsequent breach of the same or any other term or condition of this Agreement. Except as explicitly set forth herein, no other act, document, usage, custom, or course of dealing shall be deemed to amend or modify this Agreement. Notices pursuant to this Agreement shall reference this Agreement and shall be provided (a) if to Intralinks, by personal delivery, registered mail return receipt requested, or internationally-recognized courier service to Intralinks, Inc., 150 East 42nd Street, 8th Floor, New York, NY 10017, Attn: General Counsel; or (b) if to you, by email to the email address provided as your User ID. Notice shall be deemed effective upon delivery.
17. CHANGES TO END USER AGREEMENT
Intralinks will have the right to modify this Agreement from time to time. Intralinks will notify you of any such material modification by posting a notice on the Service that Intralinks has so modified the Agreement. You understand and agree that your continued use of the Service following the posting of such notice indicates your acceptance of any such modifications, which will become a part of this Agreement. We will not post notification of non-material changes.
The provision of this software or access to this Service to you does not grant any licenses or other rights under any patents of Microsoft Corporation or its subsidiaries with respect to anything other than the file server implementation portion of the binaries for this software or service, including no licenses or any other rights in any hardware or any devices or software that are used to communicate with or in connection with this software.
BY ACCEPTING THIS AGREEMENT AND CONTINUING TO USE THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.