This Terms of Service Agreement (the “Agreement”) is a contract between you and Intersect Laboratories, Inc, a Delaware corporation (the “Company” or “we”). By using the Company’s Service (as defined below) on the web or on any other applications that give access to the Service, you agree to be bound to this Agreement. The “Service” means the self-serve predictive analytics that the Company provides and the associated content, services and applications.
If you are entering into this Agreement on behalf of an entity, (i) you represent that you have the legal right, power and authority to bind such entity to this Agreement, and (ii) “you” shall also refer to such entity.
If a user violates any of the terms outlined below, we reserve the right to cancel accounts or bar access to accounts without notice. If you do not agree to these terms, please do not use our Service.
1. Account Terms
a. Registration Information. You must provide your full legal name, a valid email address, and any other required information to complete the sign-up process. One person or legal entity may not maintain more than one free account.
b. Protecting Your Information. You are responsible for maintaining the privacy and security of your account. The Company will not be held liable for any damage or loss that may result from your failure to protect your login information, including your password.
c. Refusal of Service. The Company may refuse service to anyone for any reason at any time.
d. Representations. You represent that you have the legal right, power and authority to perform all of your obligations under this Agreement and that your entrance into this Agreement does not violate any agreement between you and any third party.
e. Enterprise Version of the Service. If you use an enterprise version of the Service, you acknowledge and agree that, in addition to this Agreement, your access to and use of the Service may be subject to the terms and conditions of the Company’s Master SaaS Agreement (“Master Agreement”), which we will provide to you via the contact information indicated in your account. In the event of a conflict between this Agreement and the Master Agreement, the Master Agreement will prevail.
2. License Terms
a. Grant of License. The Company hereby grants to you, during the term of this Agreement and in connection with your account, a non-exclusive, non-sublicensable, non-transferable, non-assignable, limited license to access and use the Service.
b. Termination of License. The Company has the right to terminate this license at any time, which may be indicated by written notification to you or the Company’s cancellation of, or restriction of access to, your account.
3. Usage Restrictions
a. Sensitive Personal Information. You are prohibited from uploading any “sensitive” personally identifiable information to the Service that may relate to health or medical conditions, Protected Health Information (as defined in 45 CFR 160.13), social security numbers or taxpayer identification numbers, driver’s license numbers, information concerning political opinions, criminal charges or convictions, religious or philosophical beliefs, or racial or ethnic original (“Sensitive Personal Information”). If you upload any Sensitive Personal Information, your account and access to the Service may be terminated immediately. Notwithstanding the foregoing, the Company is not obligated to ensure that Sensitive Personal Information is not uploaded to the Service.
c. Maintenance of Access Tools. You are responsible for maintaining all computer hardware, software, facilities, and equipment needed to access the Service, and for paying all third-party access charges (e.g., charges of Internet or telecommunications services providers) incurred in connection with using the Service.
d. Authorized Access. You are solely responsible for your actions and the actions of anyone you authorize to use the service (i.e., any of your other employees or authorized agents).
e. Compliance with Laws, Regulations and Policies. You agree to abide by all local, state, national, and international laws and regulations applicable to your use of the Service, including the laws and regulations of any country, and including, without limitation, all laws regarding the transmission of promotional communications and the collection of personal data by or through the Service. You acknowledge that the laws and regulations governing the use of the Service may change from time to time. You agree to comply with all policies and procedures of networks connected to the Service.
f. Prohibited Activities. You shall NOT: (i) upload or distribute in any way files that contain viruses, corrupted files, or any other software code that may damage the operation of the Service or any other computers or facilities; (ii) interfere with or disrupt networks or facilities used in providing, or that are connected to, the Service; (iii) transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to liability; (iv) interfere with any other customer’s or person’s use and enjoyment of the Service; (v) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code underlying the Service; (vi) modify, copy, reproduce, display to third parties, translate, or create derivative works based on the Service; (vii) rent, lease, distribute, sell, resell, assign, or otherwise purpose to transfer rights to the Service; (viii) remove any proprietary notices from the Service; (ix) assert, authorize, assist, or encourage any third party to assert against the Company or any of its affiliates, customers, vendors, or licensors any patent infringement or other intellectual property infringement claim regarding any intellectual property associated with the Service that you have used; (x) remove, disable, circumvent, or otherwise create or implement any workaround to rights management or security features in or protecting the Service; or (xi) use the Service in any manner or for any other purpose other than as expressly permitted by this Agreement.
g. Geographic Restrictions. You acknowledge that you may not be able to access the Service outside of the United States and that access thereto may not be legal by certain persons in certain countries. If you access the Service from outside the United States, you are responsible for compliance with local laws. If you access the Service from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the Service, which is governed by United States law, you may be transferring your personal information and Customer Data to the United States or any other country in which the Company or its affiliates or service providers maintain facilities, and you consent to that transfer.
4. Free Trial
If you qualify and register for a free trial to the Service, the Company will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Service, or (b) the start date of any purchased subscription for the Service. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated by reference and are legally binding. Each party may terminate any free trial at any time without notice to the other party.
5. Payment and Access
a. Pricing and Changes to Fees. The Service is billed in advance in accordance with our pricing schedule provided to you upon your account registration. The Company reserves the right to change our fees upon 30 days’ notice. We will notify you of fee changes by sending an email to the email address you provided in connection with your account.
b. Billing and Payment. The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance. You agree to and authorize the Company to invoice or collect payment for all outstanding fees, on the due date of the fees, from the payment sources provided by you. Payment shall be made in U.S. dollars.
c. No Refunds. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
d. Taxes. All fees are exclusive of all taxes, levies, or duties imposed by any state, federal, national and international taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, except for taxes based on the Company’s income, property and employees. You agree to pay for any such taxes that might be applicable to your use of the Service and payments made by you in connection with the Service and this Agreement.
6. Modifications to the Service
The Company reserves the right to modify, suspend, or discontinue the Service at any time for any reason with or without notice. Although the Company endeavors to avoid changes to the Service that are not backwards compatible, if any such changes become necessary the Company will endeavor to, but not be required to notify you at least 30 days prior to the Company’s implementation of any such incompatible changes to the Service of which it becomes aware.
7. Confidentiality & Intellectual Property
a. Proprietary Information. Each party understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Company’s Proprietary Information includes information regarding features, functionality and performance of the Service, and the Company’s business, research, development, proprietary information, customer lists, product plans, inventions, technology, marketing, finances, and trade secrets. Your Proprietary Information includes data provided by you to the Company to enable the provision of the Service (“Customer Data”). The Receiving Party agrees: (1) to take reasonable precautions to protect such Proprietary Information, and (2) not to use (except in connection with the performance of the Service or as otherwise permitted herein) or divulge to any third-person outside its affiliates any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after 10 years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public without a breach of this Agreement, (ii) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, (iv) was independently developed without use of any Proprietary Information of the Disclosing Party as shown by the Receiving Party’s written records kept in the ordinary course of Business, (v) is in the form of Anonymized Data (as defined below), or (vi) is required to be disclosed by law. Point (vi) applies provided that the party required to make such a disclosure uses reasonable efforts to give the other party reasonable advance notice of such required disclosure in order to enable the other party to prevent or limit such disclosure, and shall disclose only that portion of the Proprietary Information which, based on the reasonable advice of counsel, is legally required to be disclosed and will otherwise exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Proprietary Information.
b. Customer Data. Subject to the terms and conditions of this Agreement, as between the Company and you, you shall own all right, title and interest in and to the Customer Data. You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use the Customer Data. You will ensure that you and the Company have the lawful right to use the Customer Data as contemplated by this Agreement, and you hereby grant, and agree to grant, the Company the right to use all Customer Data for the purposes set forth in this Agreement. The Company will take commercially reasonable measures to protect Customer Data on the Service. However, the Company is not responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any of the Customer Data.
c. Intellectual Property and the Service. The Company shall own and retain all right, title and interest in and to (a) the Service, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed using the Service, and (c) all intellectual property rights related to any of the foregoing.
d. Feedback. The Company shall also exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Service (the “Feedback”). You hereby assign, and agree to assign, any and all right, title, and interest, including all related intellectual property rights, in and to the Feedback and any modifications to, derivative works of, the Service.
e. Aggregate and Anonymized Data. Notwithstanding anything to the contrary, the Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business (the “Anonymized Data”). Notwithstanding anything to the contrary in this Agreement, you grant to the Company an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and create derivate works from Customer Data; provided that such Customer Data is Anonymized Data.
f. Marks. The Company’s name, logo, product names, and domain names associated with the Service are trademarks of the Company or third parties, and no right or license is granted to use them. Other trademarks, logos, and trade names that may appear on the Service are the property of their respective owners.
g. No Other Rights. No rights or licenses are granted except as expressly set forth herein. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the intellectual property rights owned by the Company or its licensors, where applicable.
8. Term and Termination
a. Term. This Agreement commences on the earlier of the date this Agreement is accepted or the date you begin using the Service. This Agreement terminates on the date that you or the Company cancels your account.
b. Cancellation by You. You are responsible for properly cancelling your account when you wish to do so. An email request to cancel your account shall result in cancellation. Any cancellation of your account will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all content in your account. This information may not be recovered from the Service once your account is cancelled. You can cancel at any time, but you will remain liable for all charges accrued up to that time, including full monthly charges for the month in which you discontinued service.
c. Cancellation, Modification or Suspension by the Company. The Company reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any of your content or Customer Data in the Service, for any reason, including if the Company believes that you have violated this Agreement.
d. Notice of Suspension or Termination. The Company will use all reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your account. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. The Company shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service.
e. Surviving Sections. The following sections will survive any termination or expiration of this Agreement: Sections 1(b) (Protecting Your Information), 1(e) (Enterprise Version of the Service), 3 (Usage Restrictions), 5 (Payment and Access) 7 (Confidentiality and Intellectual Property), 8 (Term and Termination), 9(c) (Disclaimer of Warranties), 10 (Indemnification), 11 (Limitation of Liability), 12 (Dispute Resolution), 13 (Reporting Claims of Copyright Infringement), and 14 (Miscellaneous).
9. Warranties and Disclaimer of Warranties
a. Warranties. The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service.
b. Temporary Disruptions in Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
c. Disclaimer of Warranties. THE COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
You will indemnify and hold harmless (and, if requested by the Company, defend) the Company, its subsidiaries, other corporate affiliates, licensors, and their respective officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) any claim alleging that transmission, storage, or other use of the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) a claim alleging or based upon any facts that, if true, would constitute a violation by you, or users authorized by you, including any of your employees, of any of your covenants, representations, or warranties in this Agreement. If the Company requested that you defend the Company, the Company will (1) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release the Company of all liability and such settlement does not affect the Company’s business or the Service; and (2) provide reasonable information and assistance in connection with the defense and settlement of the claim.
11. Limitations of Liability
a. Limitation of Liability. EXCEPT IN THE EVENT OF (A) THE COMPANY’S FRAUD OR WILLFUL MISCONDUCT, (B) YOUR OBLIGATION TO PAY THE COMPANY CONTRACTED-FOR AMOUNTS, AND (C) YOUR INDEMNIFICATION OBLIGATION UNDER SECTION 10 ABOVE, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE TOTAL FEES PAID TO THE COMPANY BY YOU FOR THE SIX-MONTH PERIOD IN WHICH THE CAUSE OF ACTION OCCURRED.
b. Disclaimer of Consequential and Other Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY THE COMPANY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
d. Force Majeure. Neither party will be in default of any obligation under this Agreement (other than payment obligations) to the extent that such party’s failure to perform is caused solely by conditions beyond that party’s reasonable control, such as acts of God, civil commotion, war, strikes, labor disputes, third-party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism, or governmental demands or requirements that prevent the Company from providing the Service.
12. Dispute Resolution
a. Arbitration Notification. You and the Company agree to resolve any claims relating to this Agreement or the Service, whether or not such claims involve a third party, through final and binding arbitration, except as set forth under “Exceptions to Agreement to Arbitrate” below. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. For clarity, this arbitration agreement will survive the termination of your relationship with the Company.
b. Arbitration Procedures. If either party intends to seek arbitration under this agreement, the party seeking arbitration must first notify the other Party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to the Company should be sent to us via email to email@example.com, with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our website. The notice must describe the nature and basis of the claim and the relief being sought.
c. Administration. You may bring claims only on your own behalf. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco, California, or any other location the parties mutually agree to. In the event that the American Arbitration Association is unwilling or unable to set a hearing date within one (1) year of filing the case, then either the Company or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services.
d. Award. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms.
e. Arbitration Fees. The AAA rules will govern payment of all arbitration fees.
f. Exceptions to Agreement to Arbitrate. Either Party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. Actual or threatened breach of Sections 3 (Usage Restrictions) or 7 (Confidentiality and Intellectual Property) may cause immediate, irreparable harm that would be difficult to calculate and could not be remedied by payment of damages alone. Accordingly, the Company will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
g. Waiver of Jury Trial. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND THE COMPANY AGREE THAT THERE WILL NOT BE A JURY TRIAL. You and the Company unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this agreement in any way.
13. Reporting Claims of Copyright Infringement
a. DMCA Notice. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Service infringe your copyright, you may request removal of those materials (or access to them) from the Service by submitting written notification to our copyright agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
i) Your physical or electronic signature;
ii) Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works;
iii) Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
iv) Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address);
v) A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
vi) A statement that the information in the written notice is accurate; and
vii) A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
b. Our Copyright Agent. To contact our designated Copyright Agent who is authorized to receive DMCA Notices, please email firstname.lastname@example.org or contact us at the address and phone number below:
c. Misrepresentations and Infringers. Please be aware that if you knowingly materially misrepresent that material or activity on the Service was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are infringers.
a. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
b. Assignment. This Agreement is not assignable, transferable or sublicensable by you except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.
c. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
d. Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
e. No Third-Party Beneficiaries. This Agreement is made for the benefit of the Company and you, and not for the benefit of any third parties. No other person or entity will be a third-party beneficiary to this Agreement.
f. No Waiver. No failure to exercise or enforce any right or provision of this Agreement, nor any waiver of any default or breach of this Agreement by either party will be deemed to imply or constitute a waiver of any other default or breach of this Agreement by either Party, whether of a similar nature or otherwise.
g. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or push notification; the business day after it is sent, if sent for next day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notice to the Company must be sent to email@example.com. The Company may provide notice to you via a push notification or using the email or mailing address that you provided in connection with your account. It is your responsibility to update your contact information in connection with your account.
h. Choice of Law. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
i. Publicity. You agree to grant the Company the right to use your name and logo on its website, pitch decks, and other publicity materials. You agree to reasonably cooperate with the Company to serve as a reference account upon request.
j. Headings. All section and subsection headings included in this Agreement are for ease of reference only and shall not in any way be used in the construction or interpretation of this Agreement.
k. Amendments. The Company may revise this Agreement from time to time. If the Company does revise this Agreement, the revised Agreement will supersede prior versions. Unless the Company says otherwise, revisions will be effective upon the date indicated below.
Last updated on May 29, 2019.