This Master Services Agreement is made and entered into into as of the Contract Date of the first Work Order executed between between Intralinks, Inc., located at 150 East 42nd Street, New York, New York 10017 ("Intralinks") and the Client, described in such Work Order (“Client”) (each, a "party", and together, the "parties"). CLIENT IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS MASTER SERVICES AGREEMENT BEFORE SIGNING A WORK ORDER FORM, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY SERVICES OF INTRALINKS. 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 MASTER SERVICES 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 MASTER SERVICES AGREEMENT AND CONDITIONED ON CLIENT’S ASSENT HERETO. The terms and conditions of this Master Services Agreement shall govern the Services to be provided by Intralinks under any Work Order submitted by Client and accepted by Intralinks, as though the provisions of this Master Services Agreement were set forth in their entirety within such Work Order, and so that each Work Order and this Master Services Agreement shall be considered one, fully integrated document and agreement.
"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 Client, as the case may be.
"Agreement" means, collectively, the first Intralinks® Work Order between the parties and this Master Services Agreement, as the same may be supplemented, amended or modified by further Work Orders, schedules, exhibits, appendices, addenda and amendments hereto, executed by Intralinks and Client as of the Contract Date or from time to time thereafter.
“Business Group Coordinator (Administrator)” or “Exchange Manager” means those End Users designated by Client to have the authority to instruct Intralinks in connection with the Services and to act as administrators of Client’s use of the Services.
"End User" means those persons (including without limitation, Client’s employees,advisors, representatives, consultants, contractors or agents or any other third party) who are authorized by or on behalf of Client to use the Services and have been supplied user identifications and passwords for the Services.
"End User File" means any printed, electronic or digital document that is uploaded or copied to the Services.
"Exchange" means collectively those Intralinks URLs, online Exchanges (also referred to as workspaces, dealrooms and virtual datarooms), web site contents and features provided to Client through which End Users may access, process, store and communicate End User Files.
“Intralinks Courier” shall mean Intralinks’ secure file transfer service which may be provided to Client through a web site, standalone software utility or plug-in.
“Intralinks VIA” shall mean Intralinks’ ad hoc collaboration application, including the file synch and share capabilities, desktop, mobile and web applications and all included features and functions.
"Services" means collectively all Intralinks Exchanges, Intralinks Courier, Intralinks VIA, Intralinks web site features, software, application programming interfaces, systems delivered or accessible through any media or device, support, additional services and all related materials and documentation, provided by or on behalf of Intralinks to Client pursuant to this Agreement.
"Work Order" means the form evidencing the initial order for Services and any subsequent orders separately entered into by Client and Intralinks. Each such fully executed Work Order shall be incorporated into and become a part of this Agreement.
1. Master Terms; Work Orders: (a) This Agreement shall govern any Work Orders between Intralinks and Client and Client's Affiliates. Subject to the terms and conditions of this Agreement, Intralinks grants to Client a non-exclusive, non-sublicensable, non-transferable, limited right and license to utilize, and permit its Affiliates and their agents, employees, officers and directors (who are End Users) to utilize the Services strictly in accordance with the terms and conditions of this Agreement and each Work Order. The rights and obligations of the parties set out in any Work Order (or any other document comprising the Agreement) between the parties shall be governed by this Master Services Agreement; provided that in the event of any inconsistency between a provision of any Work Order and a provision of this Master Services Agreement, the provision of the relevant Work Order shall prevail solely with respect to the Services provided and used thereunder. Client may use the Services solely to the extent and for the purpose(s) and time period(s) provided expressly under each Work Order.
(b) If Client issues a purchase order in respect of this Agreement, Client acknowledges that any such purchase order(s) is solely for the convenience of Client’s purchasing system and does not in any way modify or add to this Agreement or the rights or obligations of Intralinks or Client.
2. Payments: (a) Client agrees to pay Intralinks fees and other charges according to each Work Order, as applicable. Intralinks may charge Client separately for services not specified in Work Orders (including without limitation additional Exchanges, new service features, consulting, programming, and integration services), provided that Client has approved any such additional services and related charges in advance in writing. All fees and charges are payable in the currency used in the applicable Work Order. Except as otherwise specified herein or in a Work Order, all payment obligations are non-cancelable and fees paid are non-refundable. Unless otherwise 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, Client 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 the Client 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, Client shall be responsible for the payment of all taxes associated with provision and use of the Services (other than taxes on Intralinks' income).
3. Exchange Management: Intralinks will provide Client with one or more user ID’s, initial passwords and/or other devices for Client's designated Exchange Managers to access and use each Exchange and to permit other End Users to access and use such Exchange. Client authorizes Intralinks to act on any instructions reasonably believed by Intralinks to be authentic communications from Client or its Exchange Managers, with respect to the management of Client's Exchanges. Client acknowledges its Exchange Managers shall be authorized on Client's behalf, among other things, to appoint and remove other Exchange Managers, create, open and close Exchanges, permit any person to upload End User Files to Exchanges, manage each End User's access to End User Files, and permit End Users to download End User Files and to transfer them to third parties (including through integrations with third party services). It is Client's responsibility to keep all user IDs, passwords and other means of access to Exchanges within the possession or control of Client's End Users and Exchange Managers, employees and agents confidential and secure from unauthorized use. Client shall be responsible for monitoring its use of the Services within the limits set forth in the applicable Work Order. Intralinks retains the right to deregister End Users from the Services upon request of the employer of any End User.
4. Term & Termination: (a) This Agreement shall commence on the Contract Date of the first Work Order and continue in effect until terminated (i) in accordance with subsection 4(b), (ii) by written agreement of the parties, or (iii) by delivery of written notice of termination by either party to the other after completion of performance or termination of all Work Orders governed by this Agreement in accordance with their terms. Except as otherwise expressly provided in any Work Order, upon termination of this Agreement, Intralinks' Services shall cease and Client will immediately discontinue use of any Exchanges 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 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 30 days after delivery of notice thereof by the non-breaching party. Either party also may terminate or suspend this Agreement immediately upon 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. Without limiting the generality of any other provision of this Agreement, Intralinks may suspend access to Exchanges by Client and End Users upon 10 business days' prior written notice to Client in the event any Intralinks invoice that is not then subject to a timely asserted bona fide dispute has not been paid within 45 days after issuance and remains unpaid as of the end of such notice period.
(c) In the event Client disputes a charge in good faith, an email containing the name of the contracted company, invoice number, the specific charge and amount being disputed and the reason for the dispute must be sent to billing@Intralinks.com within forty-five (45) days of the date of the invoice containing the disputed charge. Client must retain the automatic email response from Intralinks as proof that the dispute was timely asserted. Intralinks will act in good faith to resolve all disputes accurately and timely, in its sole discretion. If a disputed charge is found to be valid then payment of such charge(s) is immediately due and payable by Client. Notification of a dispute does not relieve Client from its obligation to pay the undisputed portion of invoices.
5. Ownership of Services, Acceptable Use: (a) As between the parties, Intralinks owns and shall retain all right, title, and interest in and to the Services, all components thereof, including without limitation all related applications, user interface designs, processes, software and source code, and any and all future enhancements or modifications thereto howsoever made, and all intellectual property rights therein. Client and its End Users may use the Services for the intended business purposes only. Client shall not (i) reverse engineer, disassemble, transfer, distribute, make available or otherwise exploit the Services; (ii) modify or make derivative works based upon the Services; (iii) access the Services in order to build, operate or otherwise make available a competitive product or service; or (iv) use the Services in any manner inconsistent with the terms and conditions of this Agreement. Client hereby agrees, on behalf of itself and its End Users, that to the extent that any applicable mandatory laws (such as, for example, national laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) provide the right to perform any of the aforementioned activities without the consent of Intralinks to gain certain information about the Services, before it exercises any such rights, Client shall first request such information from Intralinks in a written notice delivered hereunder detailing the purpose for which the information is needed. Only if and to the extent Intralinks, at its sole discretion, denies such request, shall Client or its End Users exercise such statutory rights. All information derived from the exercise of such statutory rights shall be and remain the Confidential Information of Intralinks.
(b) Additionally, Client shall not use or permit use of the Services to do, or attempt to do any of the following: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material giving rise to tortious liability, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software 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 Services or its related systems or networks.
6. End User Files: End User Files shall remain the property of Client (or their respective third party owners if any) and shall not be considered part of the Services. Client acknowledges that the Services are intended to hold secondary copies of End User Files and not to maintain master or original documents. Client acknowledges and agrees that Intralinks shall not be responsible for the content of End User Files or the modification, use or publication of End User Files by any End User or third party (other than Intralinks' agents and subcontractors). Intralinks shall not be responsible for the content, accuracy or completeness of Client’s End User Files.
7. 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 Files shall be treated as Client'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 with less than reasonable 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 otherwise are bound under substantially similar confidentiality restrictions; (ii) with respect to End User Files, as authorized by Client or End Users granted rights by Client to distribute and/or disclose End User Files 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 Client, no End User or particular transaction shall be identified in connection with such statistics. Any costs in excess of $500 incurred by Intralinks in connection with third party document requests and subpoenas for production of End User Files shall be borne by Client.
(c) Client has no obligation to provide Intralinks with ideas, suggestions, concepts, or proposals relating to the Services or Intralinks’ business (collectively, “Feedback”). However, if Client provides Feedback to Intralinks, Client grants Intralinks a non-exclusive, worldwide, sublicensable, transferrable, royalty-free license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback, without any reference, obligation, or remuneration to Client. All Feedback shall be deemed non-confidential to Client. Client shall not provide to Intralinks any Feedback that is or may be subject to the intellectual property claims or rights of a third party.
(d) 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 obtain immediate injunctive relief, without the necessity of posting a bond, in the event of a breach or threatened breach of this Section 7 by the other party, any of its Affiliates or their representatives. This Section 7 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 Client.
8. Warranties: Intralinks warrants the Services will be provided in a manner (i) that meets or exceeds prevailing industry standards and (ii) is reasonably designed for the secure maintenance and distribution of End User Files. Intralinks warrants, to the best of its knowledge after implementing reasonable measures, that the Services do not contain any third party computer code intentionally designed to disrupt, disable, or harm in any manner the operation of the Services (e.g., "viruses" or "worms"). Intralinks further warrants, to the best of its knowledge, that the Services do not infringe any third party trade secret, copyright, U.S.- or U.K.- issued patent or registered trademark. OTHER THAN THE FOREGOING AND SECTION 12 (UPTIME) BELOW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. INTRALINKS MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR AVAILABLE AT ALL TIMES, NOR DOES INTRALINKS WARRANT THE COMPATIBILITY OR OPERATION OF THE SERVICES WITH ALL HARDWARE AND SOFTWARE CONFIGURATIONS. WITHOUT LIMITING THE FOREGOING, CLIENT ACKNOWLEDGES THAT FEATURES OF THE INTRALINKS SERVICE DESIGNED TO RESTRICT ACCESS TO OR USE OF END USER FILES CANNOT PREVENT MANUAL COPYING OF DISPLAYED INFORMATION AND MAY NOT PREVENT ELECTRONIC OR DIGITAL CAPTURE OF DOCUMENT CONTENTS BY END USERS USING THIRD PARTY SOFTWARE DESIGNED TO CIRCUMVENT SUCH SYSTEM FEATURES. EXCEPT AS SET FORTH IN THIS SECTION 8, INTRALINKS MAKES AND CLIENT RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE SUBJECT MATTER HEREOF. INTRALINKS DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF. CLIENT HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION BY INTRALINKS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
9. Representations: Client represents and warrants to Intralinks that the disclosure of End User Files to Intralinks and to End Users by or at the direction of Client or its End Users shall not violate any applicable law, regulation or third party rights in any material respect. Each party executing this Agreement represents to the other that it is authorized and has all rights necessary to enter into and be bound under this Agreement, and no law, regulation, court order or third party agreement prohibits its performance of this Agreement.
10. Indemnification: (a) Intralinks will indemnify, defend and hold harmless Client from and against any and all damages, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Losses”) resulting from any third-party claim, suit, action, investigation or proceeding (each, an “Action”) brought against Client based on: (i) the infringement by Intralinks of any third-party trade secret, copyright, U.S.- or UK-issued patent or registered trademark (an “Infringement Claim”); or (ii) the breach by Intralinks of any obligations, representations or warranties in this Agreement, including without limitation with respect to Confidential Information, except, in any case, to the extent such Action is based on Client's willful misconduct, negligence, or Force Majeure Event. In the event of an Infringement Claim, Intralinks may mitigate any Losses indemnified hereunder by any of the following actions: (A) procure for Client the necessary right to continue using the Services; (B) replace or modify any infringing portion of the Services with a functionally equivalent non-infringing substitute thereof; (C) modify the Services so as to be non-infringing; or (D) if none of the foregoing are commercially reasonable, terminate this Agreement (and in the event of such termination, Client shall be entitled to a refund of any prepaid fees for the unexpired portion of any term of a Work Order). Intralinks’ obligations pursuant to Section 10(a)(i) shall not apply to any Infringement Claim that arises as a result of (1) breach of this Agreement or the applicable End User License Agreement; (2) use of the Services other than in accordance with Intralinks’ documentation; (3) modification of the Services; (4) use of the Services in connection with any services, hardware, software, interfaces or other components not provided by Intralinks; or (5) End User Files.
(b) Client will indemnify, defend and hold harmless Intralinks from and against any and all Losses arising from or relating to any Action brought against Intralinks based on: (i) the material breach by Client of any of its representations in this Agreement; or (ii) the use of the Services or any End User Files by Client or any End Users acting for Client or its Affiliates, in violation of this Agreement, any applicable law, regulation or third party rights, except, in any case, to the extent such Action is based on Intralinks' willful misconduct, negligence or Force Majeure Event.
(c) Indemnification under subsections (a) and (b) hereof will be provided only on the conditions that: (i) the indemnifying party is given written notice within 15 calendar days after the indemnified party receives notice of the subject Action; provided, however, that late notice shall only excuse the indemnifying party from its obligations hereunder if such late notice materially prejudices the indemnifying party; (ii) the indemnifying party has sole control of the defense and all related settlement negotiations, provided any settlement that would impose any monetary or injunctive obligation upon the indemnified party shall be subject to such party's prior written approval; and (iii) the indemnified party provides cooperation and information in furtherance of such defense, as reasonably required by the indemnifying party. This Section 10 shall survive termination or expiration of this Agreement.
11. Limitation of Liability: EXCEPT FOR CLAIMS FOR (I) PERSONAL INJURY DUE TO NEGLIGENCE, (II) WRONGFUL DEATH, (III) WILLFUL MISCONDUCT OR (IV) FRAUD, IN NO EVENT SHALL INTRALINKS BE LIABLE TO CLIENT FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICES PROVIDED TO CLIENT OR ANY AGREEMENT BETWEEN THE PARTIES RELATING THERETO (WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER LEGAL THEORY), EVEN IF INTRALINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS FOR (I) PERSONAL INJURY DUE TO NEGLIGENCE, (II) WRONGFUL DEATH, (III) WILLFUL MISCONDUCT, (IV) FRAUD OR (V) INDEMNIFICATION FOR INFRINGEMENT UNDER SECTION 10(a)(i), THE ENTIRE LIABILITY OF INTRALINKS TO CLIENT IN CONNECTION WITH SERVICES PROVIDED TO CLIENT AND ANY AGREEMENT BETWEEN THE PARTIES RELATING THERETO (WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER LEGAL THEORY) SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAID OR BECOMING DUE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION FIRST AROSE. THIS SECTION 11 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
12. Uptime: Intralinks shall provide the Services with a minimum of Ninety-Nine and a half percent (99.5%) Operational Time Twenty-Four (24) hours a day, Seven (7) days a week as measured over each calendar month. “Operational Time” shall be calculated as [(Hours in Month – Downtime) / Hours in Month]. “Hours in Month” shall be defined as the total number of hours in any given calendar month. “Downtime” shall be defined as any period of time during that calendar month during which Client’s End Users are unable to access data on the Services (“Unavailability”), commencing on the receipt of Client's notification to Intralinks of such Unavailability or when Intralinks otherwise becomes aware of such Unavailability and ending when Intralinks has substantially restored the affected access or provided a workaround as described below. Downtime shall not include any period of time during which Client and/or its End Users are unable to access the Services due to (i) scheduled maintenance and/or upgrades; (ii) an action or omission of Client (including its employees, contractors and/or agents); (iii) data quarantined due to virus infection; and/or (iv) a Force Majeure Event. The period of Downtime due to such Unavailability shall be stopped in the event Intralinks provides to Client a workaround for such Unavailability that makes the affected portion of the Services available to End Users of affected Exchanges. Intralinks shall continue to work on a permanent correction for such Unavailability in the event it provides a workaround to Client. In the event Client reasonably determines that the workaround materially impacts the use of such Exchanges, Client shall provide telephonic and email notice of such determination, and the period of Downtime due to such Unavailability shall resume as of the time of such notice to Intralinks but shall not include the interim period during which Intralinks provided such workaround to Client. Intralinks shall continue to work on a permanent correction for such Unavailability in the event it provides a workaround to Client.
13. 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, the European Data Protection Directive 95/46/EC, 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, and United States state data privacy and data protection laws, and related implementing regulations (collectively, “Applicable Law”).
(b) Client warrants that it has complied with Applicable Law in its provision of data to Intralinks.
(c) Intralinks warrants to Client that it is certified under the EU-U.S Privacy Shield Framework operated by the U.S. Department of Commerce.
(d) Client authorizes Intralinks to process, and Intralinks shall process, personal data solely for the purposes set forth in, and in the manner required by, this Agreement or otherwise where Intralinks is acting on Client's instructions or as otherwise required by Applicable Law (it being agreed that Intralinks in performing the Services and its other obligations under this Agreement shall be deemed to be acting in accordance with Client’s instructions). Intralinks shall implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of processing. Client acknowledges that Intralinks may transfer End User Files to Intralinks’ Affiliates and its subcontractors; provided that such transfer shall be solely as needed to perform the Services hereunder and Intralinks shall be responsible for ensuring its Affiliates and subcontractors handle End User Files in accordance with the terms of this Agreement.
(e) Each party shall, to the extent permitted by Applicable Law, promptly notify the other party upon receiving a request from any third party or regulatory authority for access to data provided by Client to Intralinks. Upon reasonable written request by either party and at Client’s sole expense, the other party shall provide the requesting party with reasonable cooperation and assistance in responding to any legal or regulatory proceeding that involves data provided by Client to Intralinks.
(f) Each party shall notify the other party as soon as reasonably practicable upon becoming aware of any unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of (a) data supplied by or on behalf of Client to Intralinks pursuant to this Agreement or (b) End User credentials that enable access to or use of the Services (“Security Breach”). Each party shall cooperate with the other party in providing any notifications required by Applicable Law and seeking to ensure that similar Security Breaches do not reoccur.
(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 will not be considered a breach and will 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, problems due to Client equipment, whether owned, lease or otherwise, power outages, and governmental restrictions (a “Force Majeure Event”). If a Force Majeure Event prevails for a continuous period of more than 30 days, the party not affected by the Force Majeure Event may terminate this Agreement by giving 14 days written notice to all the other parties and upon expiration of this notice period, this Agreement will 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 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 provisions such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention. This Section 14(f) shall survive termination or expiration of this Agreement.
(g) Assignment. Except as otherwise provided below, neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party. Intralinks may assign its rights and obligations hereunder to an Affiliate without such consent. Notwithstanding the foregoing, either Party shall have the right to assign this Agreement in connection with the merger, reorganization or acquisition of such party or the sale of all or substantially all of its assets related to this Agreement, without such consent. Any purported assignment of this Agreement in violation of this subsection 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 shall be governed by and 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. Notwithstanding the foregoing, if Client is organized under the laws of England, then this Agreement shall be governed by and construed in accordance with English law, 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. All claims, controversies and disputes arising in connection with this Agreement shall be finally and exclusively settled by binding arbitration before a single arbitrator in London, England, such arbitration to be conducted pursuant to the UNCITRAL arbitration rules. A judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction of the parties.
(i) Marketing. Client agrees that Intralinks may list Client as a customer in Intralinks’ marketing materials (including, without limitation, Intralinks’ website) and grants Intralinks the right to use Client’s name, mark and logo solely in connection with such purpose.
(j) Waiver. No failure or delay of either party to exercise any right 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) Security. Intralinks utilizes security systems and infrastructure customary in the industry, including but not limited to redundant data centers with a full range of back-up and business recovery services and anti-virus and intrusion detection software. Upon request, during the term of this Agreement, Intralinks will provide Client with access to the latest SOC 2 Security and Availability Report for the Services and the Standard Information Gathering (“SIG”) questionnaire, which relates to controls of the service provider. Such report and SIG questionnaire constitute the Confidential Information of Intralinks.
(m) Foreign Corrupt Practices Act, UK Bribery Act and Other Improper Payments. In connection with the parties’ compliance with the Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act, 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 individual to obtain or retain business. In addition, neither party shall make any payments with a wrongful or corrupt intent, i.e. payments Intralinks knew or should have known were intended to influence the private party, the government official or the government.
(n) Export Compliance. The Services and any standalone utilities that may be provided to Client for use with the Services may be subject to export laws and regulations of the United States, the European Union and other jurisdictions. Each party represents that it is not named on any U.S. government or European Union member denied-party list. Client shall not permit End Users to access or use the Services in a U.S.-embargoed country, in violation of any U.S. or European Union export law or regulation from where Client uses the Services. Client is solely responsible for obtaining any necessary export license or other approval to transfer End User Files in connection with its use of the Services.