Integrator Agreement
April 10, 2024
This Integrator Agreement is made and entered into as of the Effective Date and executed between Intralinks, Inc., located at 622 Third Avenue, 10th Floor, New York, New York 10017 ("Intralinks") and the Client Integrator as defined in the Work Order (each, a "party", and together, the "parties"). CLIENT IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS INTEGRATOR AGREEMENT BEFORE SIGNING A WORK ORDER, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY INTRALINKS SERVICES. BY (AS APPLICABLE) SIGNING A WORK ORDER, CLICKING “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, CLIENT CONFIRMS THAT CLIENT HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CLIENT MAY REFERENCE OR PROVIDE, INTRALINKS’ OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CLIENT WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS INTEGRATOR AGREEMENT AND CONDITIONED ON CLIENT’S ASSENT HERETO. The terms and conditions of this Agreement shall govern the services to be provided under any Work Order submitted by Integrator and accepted by Intralinks, as though the provisions of this Integrator Agreement were set forth in their entirety within such Work Order, and so that each Work Order and this Integrator Agreement shall be considered one, fully integrated document and agreement.
DEFINITIONS
"Affiliate" means any entity that directly or indirectly owns or controls, is owned or controlled by or is under common ownership or common control with Intralinks or Integrator, as the case may be.
"Agreement" means, this Integrator Agreement, as the same may be supplemented, amended or modified by schedules, exhibits, appendices, addenda and amendments hereto, executed by Intralinks and Integrator as of the Effective Date or from time to time thereafter.
“Code" means computer programming code, whether in Object Code form or Source Code form.
“Integrator Software” means any Integrator software, product or service that contains, uses or was developed using the Intralinks Tools or that interfaces with the Intralinks API, and that is licensed, sold, distributed or otherwise made available directly or indirectly to one or more unaffiliated End Users.
“Effective Date” means the date of the first Work Order signed by the parties.
"End User" means either Integrator's unaffiliated customers who have purchased, licensed or otherwise acquired Integrator Software and have also agreed to the terms of a EUA with Intralinks.
"EUA" means Intralinks' standard End User Agreement, or (if applicable) another agreement between an End User and Intralinks pursuant to which Intralinks has permitted the End User to access and use the Intralinks Software.
“Intralinks Software” means the Intralinks services that make an End User's exchange or workspace available for access through the Intralinks API, including all Updates to such services, and the associated documentation.
“Intralinks API” means Intralinks' public-facing Intralinks RESTful API, as made available to Integrator pursuant to this Agreement, including any Updates thereto that Intralinks may make available to Integrator pursuant to this Agreement.
“Intralinks Products” means the Intralinks Software, the Intralinks API and the Intralinks Tools.
"Intellectual Property Right" means all current and future worldwide intellectual property rights, including, without limitation, all Patents, copyrights, trademarks, service marks, mask work rights, Confidential Information, trade secrets and know-how, and applications and registrations for any of the foregoing.
"Intralinks Tools" means any technical or other specifications, sample Source Code, documentation, tools, libraries, APIs, data, files and other materials made available by Intralinks for use by Integrator to enable Integrator Software to interact and communicate with the Intralinks Software via the Intralinks API, including any Updates thereto that Intralinks may make available to Integrator pursuant to this Agreement.
"Object Code" means computer program code in binary (machine-readable) format suitable for execution by computer equipment, as generated from Source Code by an assembler, compiler or interpreter.
"Permitted Data" means data to be transmitted to and through the Intralinks API, where (a) the data complies with all technical requirements set forth in the applicable specifications and other documentation in the Intralinks Tools, and (b) prior to a transmission of such data, Integrator has obtained all necessary third-party consents to permit such transmission (including with respect to Intellectual Property Rights and data privacy rights).
"Publicly Available Software" means each of (a) any work that contains, or is derived in any manner (in whole or in part) from, any software or portion thereof that is distributed as free software, open source software, or pursuant to similar licensing and distribution models; and (b) any work that requires as a condition of use, modification, and/or distribution of such work that such work or other copyrightable materials (including software) incorporated into, derived from, or distributed with such work (i) be disclosed or distributed in Source Code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no or minimal charge. Publicly Available Software includes, without limitation, software licensed or distributed pursuant to any of the following licenses or distribution models similar to any of the following: (1) GNU General Public License (GPL), Lesser/Library GPL (LGPL) or Affori GPL (AGPL), (2) the Artistic License, (3) the Mozilla Public License, (4) the MIT License, (5) the BSD License, (6) the Common Development and Distribution License (CDDL), and (7) the Apache Software License.
"Services" mean collectively the Intralinks Products, Intralinks’ web site features, systems delivered or accessible through any media or device, support, additional services and all related materials and documentation, as well as any training and consultation hours provided by or on behalf of Intralinks to Integrator pursuant to this Agreement.
"Source Code" means computer programming code (and the related source code level system documentation, design specifications, comments and procedural code) which may be printed out or displayed in a form readable and understandable by a programmer of ordinary skill. Source Code also includes the source code management system, product build environment, test system scripts, test harnesses, procedures and automation, and quality control methods and requirements, as applicable.
2. PAYMENTS
(a) Integrator agrees to pay Intralinks fees and other charges according to each Work Order, as applicable. Except as otherwise expressly specified herein or in a Work Order, all payment obligations are non-cancelable and fees paid are non-refundable. Unless otherwise expressly agreed in a Work Order, all fees and charges are payable to Intralinks upon receipt of invoice.
(b) Charges and other amounts payable under this Agreement exclude applicable taxes (including VAT) and (i) if any such amount is in consideration for a taxable supply for VAT purposes, Integrator shall pay on receipt of a valid VAT invoice an amount equal to any VAT which may from time to time be properly chargeable in respect of such a supply; and (ii) such amounts shall be paid free and clear of any deduction or withholding (save as required by law), provided that if any deduction or withholding is required by law to be made from any payment due from Integrator under this Agreement, the amount of such payment shall be increased to an amount which will, after such deduction or withholding has been made, leave Intralinks with the same amount as it would be entitled to receive under this Agreement in the absence of any such deduction or withholding. For the avoidance of doubt, Integrator shall be responsible for the payment of all taxes associated with provision and use of the Services (other than taxes on Intralinks' income).
3. TERM & TERMINATION
(a) This Agreement shall commence on the Effective Date and continue in effect until terminated (i) in accordance with Section 3(b); or (ii) by written agreement of the parties. Upon termination of this Agreement, the Services shall cease and Integrator shall immediately discontinue use of the Services provided hereunder.
(b) Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice if the other party: (i) becomes insolvent; (ii) becomes the subject of a petition in bankruptcy which is not withdrawn or dismissed within sixty (60) days thereafter; (iii) makes an assignment for the benefit of creditors; or (iv) breaches any material obligation under this Agreement (including but not limited to payment obligations) and fails to cure such breach within ten (10) days after delivery of written notice thereof by the non-breaching party. Either party also may terminate or suspend this Agreement immediately upon prior written notice if such party determines in its reasonable judgment that continuing to provide or use the Services pursuant to this Agreement would infringe upon the intellectual property rights of any third party, or that the Services have been or may be used by the other party for any illegal transaction or unlawful purpose. Intralinks may terminate this Agreement and/or any Work Order for convenience at any time with thirty (30) days’ prior written notice.
4. LICENSE GRANT
(a) Subject to Integrator's compliance with the terms of this Agreement, Intralinks grants Integrator a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 13(g) of this Agreement), non-sublicensable right during the term of this Agreement to install and internally access the Intralinks Tools, in Object Code form only (except for the Source Code for any sample code made available by Intralinks to Integrator as part of the Intralinks Tools), for the sole purpose of creating and modifying Integrator Software to enable interaction and communication between the Integrator Software and the Intralinks Software, via the Intralinks API. Integrator will have no right to install or access the Intralinks Tools for any other purpose. If Intralinks supplies Integrator with any sample Source Code, and subject to Integrator's compliance with the terms of this Agreement, Intralinks grants Integrator a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 13(g) of this Agreement), non-sublicensable right to internally access such sample Source Code for the sole purpose of assisting Integrator with its modification of the Integrator Software in connection with the above license grant.
(b) Subject to Integrator's compliance with the terms of this Agreement, Intralinks grants Integrator a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 13(g) of this Agreement), non-sublicensable right to use, access and transmit Permitted Data to and through the Intralinks API for the sole purpose of interaction and communication of Permitted Data between the Integrator Software and the Intralinks Software. Integrator's use of the Intralinks API pursuant to the foregoing license grant is limited to (i) any Intralinks Software test environment to which Intralinks grants Integrator access, and (ii) upon Intralinks' delivery of appropriate access credentials to Integrator, any Intralinks Software production environment to which Intralinks grants Integrator access.
5. LICENSE RESTRICTIONS
(a) Integrator shall only permit access or use of functionality of the Intralinks API in connection with operation of the Integrator Software for End Users who have received login credentials from Intralinks. Integrator must disclose in writing to each such End User (i) the scope and extent of Integrator's use of End User's login credentials and Intralinks Software account, and (ii) that Integrator, and not Intralinks or any of its suppliers or licensors, assumes any and all liability for any costs or damages resulting from Integrator's use of End User's login information and Intralinks Software account, including without limitation any loss or destruction of End User's data. Integrator is only permitted to use the Intralinks API to access, retrieve, download, modify or delete any documents or other data when authorized by the applicable End User. Intralinks shall not be liable for any damages arising out or in connection with the Integrator’s use of the End User’s login credentials and Intralinks’ Software Account.
(b) Integrator shall not expose the Intralinks Products to any third party, make the Intralinks Tools or the Intralinks API available for use by any third-party application, or develop wrappers or extensions for the Intralinks Tools or the Intralinks API. Integrator shall not market or distribute any portion of any Integrator Software under a trademark, brand or service mark of Integrator which competes with Intralinks’ Services or which may result in consumer confusion with, or dilution of, Intralinks' trademarks.
(c) Integrator shall not permit any employee or representative of any third party which competes with Intralinks to use, copy, view or otherwise access in any way the Intralinks Products or Confidential Information.
(d) Intralinks grants no implied licenses under this Agreement, and any rights not expressly granted to Integrator hereunder are reserved by Intralinks. Integrator shall not make any use of any of Intralinks' Intellectual Property Rights, any Intralinks Product or any Source Code made available by Intralinks except as expressly permitted herein. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, INTEGRATOR MAY NOT (AND MAY NOT PERMIT ANY END USER TO) USE THE INTRALINKS PRODUCTS (INCLUDING ANY SOURCE CODE MADE AVAILABLE BY INTRALINKS) FOR COMMERCIAL TIMESHARING, SERVICE BUREAU, OR OUTSOURCING PURPOSES. INTEGRATOR SHALL NOT DECOMPILE, DISASSEMBLE, OR IN ANY WAY ATTEMPT TO REVERSE ENGINEER THE INTRALINKS PRODUCTS, OR (EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN) MODIFY OR CREATE DERIVATIVE WORKS OF THE INTRALINKS PRODUCTS OR SOURCE CODE. Integrator shall abide by and comply with all technical restrictions and limitations contained in the specifications and documentation made available by Intralinks, including without limitation any limits on rate of transmission of network messages via the Intralinks API.
(e) The foregoing licenses are subject to Integrator's compliance with Intralinks' acceptable use as set forth in this Agreement and Intralinks’ privacy policy, as revised from time to time. Integrator will not (i) sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose the API or any portion thereof (including any access credentials used in connection with the Intralinks API) to any third party except as expressly permitted in this Agreement; (ii) use the Intralinks Tools or Intralinks API in connection with any product or software other than the Integrator Software or beyond the defined scope of use for the Integrator Software; (iii) distribute the Intralinks Tools or Intralinks API as a stand-alone product; (iv) access, reverse engineer, or make available to any third party any interface or functionality of the Intralinks Products not expressly included in the Intralinks Tools or Intralinks API, or otherwise publicly documented by Intralinks for general use; (v) use the Intralinks Tools or Intralinks API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to Intellectual Property Rights, rights of privacy, publicity or personality, or in any manner inconsistent with the standard Agreement for Intralinks Services, EUA, Privacy Policy, or this Agreement; (vi) use the Intralinks Tools or Intralinks API to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake; (vii) use the Intralinks Tools or Intralinks API in a manner that exceeds the request volume set out in the Work Order, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the documentation made available to you in connection with the Intralinks Tools or Intralinks API; (viii) use the Intralinks Tools or Intralinks API in connection with a product or service that competes with products or services offered by Intralinks, or in connection with causing any Intralinks’ customer to transition away from, or otherwise decrease or cease use of, the Intralinks Products; (ix) disclose to any third party the results of any benchmark test or other comparison of any of the Intralinks Products without Intralinks' prior written approval; or (x) cause, assist, request or permit any third party to do any of the foregoing.
(f) Intralinks reserves the right, at its sole discretion, to temporarily or permanently suspend or disable (i) Integrator's access to the Intralinks Products and (ii) the ability of the Integrator Software to interact with the Intralinks API in the event it has reasonable grounds of suspicion of (a) any use of the Services in violation of this Agreement or any applicable law; (b) an attack, or the threat of an attack to the Services originating from the unique access key provided to the Integrator for the usage of the Services.
(g) The Intralinks Products may include the ability to interact and communicate with products and services (including APIs) that are owned or operated by third parties (collectively, "Third Party APIs"). Any such interaction and communication is subject to Integrator's compliance with all third party terms applicable to such use in addition to compliance with this Agreement. Third Party APIs are not within the supervision or control of Intralinks. Integrator acknowledges that access to any Third Party API may be limited, suspended or terminated, and that the terms of access to any Third Party API may change, in each case at the discretion of the applicable third party.
6. LICENSE USE
(a) Integrator hereby grants to Intralinks a royalty-free, worldwide, sublicensable, transferable, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, disclose and otherwise exploit any data that Integrator or End Users transmit to or through the Intralinks API, in connection with Intralinks' provision of the Intralinks Products and for Intralinks' other business purposes, and Integrator represents and warrants that it has obtained all rights and licenses necessary to make such grant to Intralinks.
(b) Upon request from Intralinks, Integrator will provide Intralinks with access to its then-current version of the Integrator Software for Intralinks' review. Integrator hereby grants to Intralinks a royalty-free, worldwide, sublicensable, transferable, non-exclusive right and license to access and use the Integrator Software and related Integrator technology for Intralinks' evaluation of such Integrator Software and its internal business use purposes. If Intralinks notifies Integrator that the Integrator Software does not meet Intralinks' quality standards or is otherwise not approved by Intralinks, then Integrator shall promptly remedy any failings or disapprovals specified by Intralinks. Integrator will promptly provide Intralinks with access to and use of the Integrator Software in accordance with this Section 6 following any updates, revisions, superseding replacements, patches, and fixes.
(c) Integrator shall not use or permit to use the Intralinks Products to do or attempt to do any of the following: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous or otherwise unlawful material which may give rise to tortious liability, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing malicious software including without limitation viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Intralinks Products or its related systems or networks.
(d) Integrator will immediately notify Intralinks of (i) any unauthorized access to the Intralinks Products and (ii) any security flaws or deficiencies in the Integrator Software that actually or potentially could affect the Intralinks Products.
(e) Intralinks shall provide support to the Integrator as set out in the relevant Work Order.
(f) As used herein, "Source Disclosure Obligations" means requirements to either (i) distribute or make available Source Code as well as Object Code of software to licensees without charge (except for the cost of the medium or other fees that may be charged under the relevant license) or (ii) permit licensees to modify software and redistribute both the modified and unmodified versions of software. Integrator warrants and represents that, unless Integrator has obtained Intralinks' express prior written consent, (a) the Integrator Software do not and shall not include any Publicly Available Software in a manner that may subject the Integrator Software or the Intralinks Products, in whole or in part, to any Source Disclosure Obligations; (b) Integrator has not used and shall not use Publicly Available Software in whole or in part in the development of any part of the Integrator Software in a manner that may subject the Integrator Software or the Intralinks Products, in whole or in part, to any Source Disclosure Obligations; and (c) Integrator is not now obligated to make the Source Code of the Integrator Software or the Intralinks Products, nor shall Integrator allow the Source Code of the Integrator Software or the Intralinks Products to be made, generally available to the public.
(g) Integrator may from time to time provide suggestions, comments or other feedback to Intralinks with respect to Confidential Information, the Intralinks Products or Source Code ("Feedback"). Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Integrator, shall not, absent a separate written agreement, create any confidentiality obligation for Intralinks. Integrator will not give Feedback that contains a third party's confidential information or that is subject to license terms that seek to require any Intralinks software, Source Code, technology, service or documentation incorporating or derived from such Feedback, or any Intralinks Intellectual Property Right, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise expressly provided herein, Intralinks shall be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind.
7. OWNERSHIP
(a) Integrator retains ownership of all right, title and interest to any and all Intellectual Property Rights (including any improvements, enhancements or modifications thereto) in the Integrator Software that were previously or independently developed or created by Integrator without access to or use of any Intellectual Property Right of Intralinks, and which were not otherwise assigned to Intralinks ("Integrator Rights"). Except for the licenses and assignments set forth in this Agreement, nothing in this Agreement grants to or confers in Intralinks any license or right of ownership in the Integrator Rights.
(b) Intralinks retains ownership of all right, title and interest to any and all Intellectual Property Rights, previously or independently developed or created by Intralinks without access to or use of any Intellectual Property Right of Integrator, in the Intralinks Products, Source Code and Intralinks' trademarks, including any improvements, enhancements or modifications thereto made by Intralinks or any third party, but excluding the portions of the Integrator Software that are independent of the Intralinks Products ("Intralinks Rights"). To the extent such material is in Integrator's possession or control, Integrator will take all reasonable and necessary measures to protect the Intralinks Rights, and to the extent Integrator obtains any Intellectual Property Rights or other rights in any of the foregoing, Integrator hereby assigns all right, title and interest therein and thereto to Intralinks. If so requested by Intralinks, Integrator agrees to execute a written assignment of such Intellectual Property Rights to Intralinks and to execute any other documents necessary for Intralinks to establish, preserve or enforce the Intralinks Rights. To the extent that Integrator is unavailable, unable or unwilling to execute such documents, Integrator hereby appoints Intralinks as its attorney in fact and grants Intralinks the right to execute such documents in its stead. Except for the licenses and assignments set forth in this Agreement, nothing in this Agreement grants to or confers in Integrator any license or right of ownership in any of the foregoing. Integrator agrees not to remove any trademark, copyright or other proprietary notices in the Intralinks Products.
8. CONFIDENTIALITY
(a) "Confidential Information" means any and all information disclosed by or at the direction of either party to the other in connection with the provision or use of Services under this Agreement, including, without limitation, information relating to the business, operations, technology, properties, employees and clients of the disclosing party. Without limiting the foregoing, all information, processes, know-how, designs and technology relating to the Services as well as the terms of this Agreement shall be deemed Intralinks' Confidential Information, and all End User’s data shall be treated as Integrator's Confidential Information. Notwithstanding the foregoing, Confidential Information does not include any information that a receiving party can demonstrate (i) was known to it prior to the information's disclosure in connection with provision or use of the Services; (ii) is or becomes known publicly through no wrongful act of the receiving party; (iii) was rightfully received from a third party under no contractual, legal or fiduciary obligation to keep such information confidential; or (iv) was independently developed by the receiving party, without the use of any Confidential Information.
(b) Each receiving party agrees that it shall use Confidential Information of the disclosing party solely in furtherance of the performance of this Agreement and for no other purpose. Each party shall use the same degree of care to protect the other party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than a reasonable degree of care. Each party agrees not to disclose the other party's Confidential Information to any person or entity other than: (i) to employees, agents, subcontractors or consultants of the receiving party on an as-needed basis, provided such persons have entered into written confidentiality agreements consistent with this Section 7 or are otherwise bound by substantially similar confidentiality restrictions; (ii) with respect to End User’s data, as authorized by Integrator or End Users granted rights by Integrator to access, use, distribute, and/or disclose End User’s data through the Services; (iii) to the extent required by court order, legal process, governmental regulation or applicable law, provided that the party required to disclose the information provides prompt advance written notice thereof (to the extent permitted by law) to the other party; or (iv) otherwise solely as expressly authorized in writing by the disclosing party. Notwithstanding any provision hereof to the contrary, Intralinks may use and disclose statistical data regarding the use of the Services, provided that no Integrator, End User, End User File or particular transaction shall be identified in connection with such statistical data.
(c) Each party acknowledges and agrees the use or disclosure of Confidential Information inconsistent with this Agreement could cause irreparable harm to a disclosing party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any remedies available at law, any non-breaching party shall have the right to seek immediate injunctive relief, without the necessity of posting a bond, in the event of a breach or threatened breach of this Section 8 by the other party, any of its Affiliates or its and their respective representatives. This Section 8 shall survive termination or expiration of this Agreement. This Agreement expressly supersedes and replaces in its entirety any non-disclosure agreement executed by Intralinks in connection with preliminary discussions regarding the provision of Services to Integrator.
9. WARRANTIES
(a) THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS) ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' WITHOUT WARRANTY OF ANY KIND, AND INTEGRATOR ACKNOWLEDGES THAT INTRALINKS MAKES NO WARRANTIES WITH RESPECT THERETO. INTRALINKS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS), INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, INTRALINKS DISCLAIMS ANY WARRANTY THAT INTEGRATOR'S USE OF THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS) WILL MEET ANY OR ALL OF INTEGRATOR'S REQUIREMENTS, THAT SUCH USE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE OR THAT THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS) WILL ALWAYS BE COMPATIBLE WITH INTEGRATOR SOFTWARE.
(b) Integrator represents and warrants that: (i) it is a corporation or other entity duly organized and validly existing under the laws of the jurisdiction above stated, with full power and authority to carry on its business as now conducted and to enter into and carry out the terms of this Agreement; (ii) it has obtained all necessary corporate and other authorizations and approvals required for the execution and delivery of this Agreement; (iii) this Agreement constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms, subject to the laws of bankruptcy and laws of general applicability relating to or affecting enforcement of creditors' rights, and judicial discretion in the application of principles of equity; and (iv) the execution, delivery and performance of this Agreement shall not conflict with or result in a breach of any other agreement to which it is a party or breach of any third party right.
(c) Integrator represents and warrants that it has obtained and shall obtain nondisclosure, assignment of rights and other appropriate agreements with its employees and contractors sufficient to protect the Confidential Information, and sufficient to allow Integrator to provide Intralinks with the assignments, rights and licenses provided for herein, such agreements to contain terms no less protective than the terms set forth in this Agreement.
10. INDEMNIFICATION
Integrator agrees to indemnify, defend and hold harmless Intralinks, its affiliates, and their respective officers, directors, representatives, agents, employees, licensors, distribution channels, customers and end users against any and all losses, liabilities, damages and penalties, and all related costs and expenses (including reasonable attorneys' fees) arising from (i) claims of infringement or misappropriation of any Intellectual Property Right in connection with any Integrator Software; (ii) claims made in connection with the acts or omissions of Integrator, or its employees or representatives, not in accordance with this Agreement or the licenses granted in this Agreement; (iii) claims based on or relating to Integrator Software; and (iv) claims based on or relating to Integrator's or Integrator's End Users' use of the Intralinks Products, except to the extent that such claims relate solely to the Intralinks Products standing alone.
11. LIMITATION OF LIABILITY
(a) Exclusions. INTRALINKS IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OR DAMAGE TO GOODWILL, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER, REGARDLESS OF THE BASIS OR LEGAL THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INTRALINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INTRALINKS SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY INTEGRATOR (OR ANY PERSON CLAIMING UNDER OR THROUGH INTEGRATOR), WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE OR FOR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE HOWSOEVER, UNLESS THEY RESULTED SOLELY FROM THE GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD OF INTRALINKS AND ARE NOT OTHERWISE EXCLUDED OR LIMITED BY THIS SECTION 11.
(b) Maximum Liability. INTRALINKS' TOTAL LIABILITY UNDER THIS AGREEMENT FOR DAMAGES, REGARDLESS OF THE BASIS OR LEGAL THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT, IN ANY EVENT, EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID BY INTEGRATOR TO INTRALINKS UNDER THE RELEVANT WORK ORDER FOR THE RELEVANT SERVICES GIVING RISE TO THE CLAIM FOR DAMAGES (LESS ANY REFUNDS OR CREDITS) IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
12. DATA PROCESSING
(a) Each party shall comply with all laws and regulations of the relevant jurisdictions that apply to its respective performance of obligations and exercise of rights under this Agreement, including, as applicable, Regulation (EU) 2016/679 of 27 April 2016, General Data Protection Regulation (the “GDPR”), the Personal Data (Privacy) Ordinance (Cap 486 of the Laws of Hong Kong), the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, the California Consumer Privacy Act (the “CCPA”), and other U.S. federal or state data privacy and data protection laws, and related implementing regulations (collectively, “Applicable Data Privacy Laws”).
(b) “Personal Data” means any information relating to an identified or identifiable natural person (or, to the extent that Applicable Data Privacy Laws apply to information about legal persons, an identified or identifiable legal person), or as otherwise defined in Applicable Data Privacy Laws, which is included in End User’s data.
(c) Integrator warrants that:
- it has complied, and shall continue to comply, with Applicable Data Privacy Laws in its collection, processing and provision to Intralinks of Personal Data; and
- shall not process any Personal Data using the Intralinks Products, or permit Intralinks to process any Personal Data, in breach or contravention of any order issued to, or limitation of processing imposed on, Integrator by any regulatory authority.
(d) Intralinks shall process the Personal Data according to the terms of the EUA agreed by the End User and any agreement signed between Intralinks and the End User or the End User’s organization.
13. MISCELLANEOUS
(a) Notices. Except as otherwise expressly provided, all notices, requests, demands or consents under this Agreement must be in writing, and be delivered personally, by certified mail, by internationally recognized courier service to the addresses of the parties set forth in this Agreement or by email. Notices to Intralinks shall be sent to the attention of the General Counsel or to contracts@Intralinks.com.
(b) Modification. Any modification, amendment or waiver to this Agreement shall not be effective unless in writing and signed by both parties.
(c) Independent Contractors; No Third-Party Beneficiaries. The parties are independent contractors with respect to each other and neither shall be deemed an employee, agent, partner or legal representative of the other for any purpose or shall have any authority to create any obligation on behalf of the other. No third-party beneficiary rights are granted as a result of or pursuant to this Agreement.
(d) Force Majeure. Any delay in or failure of performance by either party under this Agreement shall not be considered a breach and shall be excused to the extent caused by any event beyond the reasonable control of such party including, but not limited to, acts of God, acts of civil or military authorities, strikes or other labor disputes, fires, interruptions in telecommunications or Internet or network provider services, power outages and governmental restrictions and, in the case of Intralinks’ delay or failure to perform, problems due to Integrator-owned equipment (a “Force Majeure Event”). If a Force Majeure Event prevails for a continuous period of more than thirty (30) days, the party not affected by the Force Majeure Event may terminate this Agreement by giving fourteen (14) days’ prior written notice to the other party and upon expiration of this notice period, this Agreement shall terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
(e) Entire Agreement. This Agreement contains the complete, full and exclusive agreement between the parties pertaining to the subject matter hereof. This Agreement supersedes all prior agreements, understandings, representations, warranties, proposals, requests for proposal and negotiations, if any, related to the subject matter hereof.
(f) Severability. If any court of competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention. This Section 13(f) shall survive termination or expiration of this Agreement.
(g) Assignment. Integrator may not assign this Agreement or any rights or obligations hereunder in whole or in part without the prior written consent of Intralinks. In the event of any proposed assignment of this Agreement to an Affiliate of Intralinks, Integrator’s consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Intralinks shall have the right to assign this Agreement in connection with the merger, reorganization, acquisition or the sale of all or substantially all of its assets related to this Agreement, with prior written notice to Integrator. Any purported assignment of this Agreement in violation of this Section 13(g)shall be invalid. This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
(h) Governing law; Jurisdiction. This Agreement is governed by and is to be construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws principles. The parties agree the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties agree to submit to the jurisdiction of the state and federal courts located in New York County, New York, for the adjudication of any case or controversy arising under this Agreement, and the parties hereby waive their right to a trial by jury in any such litigation.
(i) Publicity and Press Releases. Neither party may issue a press release or similar public announcement of any kind regarding the parties' relationship established hereunder, use publicly the other party's name or refer to the other party in any way in or with the media, including, but not limited to, in advertising, without the prior written approval of the other party. A violation of this provision shall constitute a material breach of this Agreement.
(j) Waiver. No failure or delay of either party to exercise any right or remedy provided under this Agreement or by law or to insist upon strict compliance by the other party to its obligation under this Agreement, and no custom or practice of the parties in variance with the terms of this Agreement, shall constitute a waiver of either party’s right to demand exact compliance with the terms of this Agreement. Any waiver of any breach of any provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof.
(k) Interpretation. This Agreement has been mutually negotiated, and therefore shall be deemed to have been negotiated and prepared at the joint request, direction and construction of all parties, at arm’s length and shall be interpreted in accordance with the terms without favor to any party.
(l) Foreign Corrupt Practices Act, UK Bribery Act and Other Improper Payments. In connection with the parties’ compliance with the U.S. Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act (and similar laws of other jurisdictions), the parties shall not offer, promise, approve or make payments, gifts or anything of value to foreign government officials or private parties for the purpose of influencing such individuals to obtain or retain business. In addition, neither party shall make any payments with a wrongful or corrupt intent, including without limitation payments a party knew or should have known were intended to influence a private party, government official or government.
(m) Export Compliance. Integrator shall comply with all laws, rules and regulations applicable to it or its use of the Intralinks Products hereunder. Technical information and other materials that may be made available by Intralinks to Integrator in connection with the services may be subject to export and import laws and regulations of the United States and other jurisdictions. Integrator shall not export, re-export, divert, transfer, or disclose, directly or indirectly, any such technical information or other materials to any country, or to any foreign national, without first obtaining any authorization necessary from the U.S. Commerce Department, Office of Foreign Assets Control and any relevant local governmental authority. Integrator shall comply with all applicable export and import control laws, rules and regulations, including any required reporting and recordkeeping requirements, and represents that it and its personnel are not named on any U.S. government denied-party list. Without limiting the foregoing, Integrator shall not transfer any Intralinks technical information or other materials to countries listed in Country Group E to Supplement No. 1 of 15 CFR part 740, or foreign nationals thereof, or make the Intralinks Products available to such countries or foreign nationals, without the prior written authorization of Intralinks. Integrator shall obtain prior written authorization from Intralinks before transferring, or permitting the transfer of, technical information or other materials to any non-U.S. entity headquartered outside of the countries listed in Supplement No. 3 to 15 CFR part 740.
(n) Government Software. The Intralinks Products are 'commercial items,' as that term is defined in 48 C.F.R. 2.101 (Jan. 2001), consisting of 'commercial computer software' and 'commercial computer software documentation,' as such terms are used in 48 C.F.R. 12.212 (Nov. 2007). Notwithstanding anything to the contrary in this Agreement, Integrator shall not license, sell, transfer or distribute any portion of the Intralinks Products to any federal, state, county or local government if such license, sale, transfer or distribution would require Intralinks to comply with any federal, state, county or local government procurement or similar laws, rules or regulations unless Intralinks consents in writing to such license, sale, transfer or distribution. In the event that Intralinks consents in writing to such license, sale, transfer or distribution, all U.S. Government Integrators and End Users acquire the Intralinks Products with only those rights set forth herein.