Intellum Inc.

Intellum Platform Terms of Service

THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN CLIENT’S ACCESS TO AND USE OF INTELLUM’S HOSTED LEARNING SOLUTIONS DESCRIBED HEREIN AS WELL AS THE PROVISION OF RELATED SERVICES. CAPITALIZED TERMS HAVE THE MEANINGS SET FORTH IN THIS AGREEMENT OR IN THE DOCUMENTATION, WHETHER ATTACHED HERETO OR INCORPORATED BY REFERENCE OR THROUGH HYPERLINKS. BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR BY USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE INTELLLUM’S HOSTED LEARNING SOLUTIONS.

1. PROVISION OF INTELLUM SOLUTIONS

1.1 Solution Categories. “Software Solutions” means Intellum’s hosted software solutions including Intellum’s learning platform (the “Platform”) and related modules including Social, eCommerce, and Data Connector, and Intellum’s content authoring tool know as Evolve. “Service Solutions” means any implementation, software support and managed services, or other professional services that are described in a Service Order. “Solutions” means collectively the Software Solutions and Service Solutions.
1.2 Agreement to Provide Solutions to Client. Intellum agrees to provide to Client the Solutions identified in an order form (each, a “Service Order”, collectively, the “Service Orders”) executed by the Parties during the Term. Service Orders when signed by both Parties shall be deemed part of this Agreement. Unless otherwise agreed upon by the Parties, Service Orders shall be in Intellum’s standard form and shall contain a description of the Solutions covered by that Service Order, and the terms and conditions specific to those Solutions, including, without limitation, pricing and payment terms.
1.3 License to Software Solutions. During the Term and subject to Client’s compliance with this Agreement, Intellum grants Client a non-exclusive, non-transferable, non-assignable, limited right to access, and to allow Client’s authorized employees or as specifically contracted for Client’s third-party audience (collectively “Users”) to access the Software Solutions in accordance with the terms of this Agreement and the Service Orders governing those Solutions. Client and Users shall access the Software Solutions through the Internet using security credentials established within the Software (“User Credentials”) and/or via single sign-on. Neither Client nor any User may provide its User Credentials to any other person or entity. All of Client’s obligations with regard to use of the Solutions are imputed to the Users and all acts and omissions of Users are imputed to Client.
1.4 Restrictions. Client shall not: (a) lease, license, sell, sublicense or otherwise transfer its access to or use of the Software Solutions; (b) use the Software Solutions outside the licensing metrics set out in the applicable Service Order (e.g., per user limitations), if any; (c) make any Software Solution available to, or use any Solution for the benefit of, anyone other than Client and Users; (d) use or permit use of any Software Solution in contravention of Section 5.1 (Prohibited Uses); (e) interfere with or disrupt the integrity or performance of any Software Solution; (f) attempt to gain unauthorized access to any Software Solution; (g) permit direct or indirect access to or use of any Software Solution in a way that circumvents a usage limit; (h) copy a Software Solution or any part, feature, function, or user interface thereof; (j) access any Software Solution in order to build a competitive product or Solution; or (k) modify, create “Derivative Works” (as defined by the United States or any international Copyright Act) of, or attempt to decipher, decompile, disassemble or reverse engineer the Software Solutions or any source code to the Software Solutions.
1.5 Service Levels. Intellum shall provide the Software Solutions in accordance with the service level agreement (“Service Levels”) set forth herein. In all instances where service credits are available, the service credits shall be Client’s sole remedy for Intellum’s failure to meet a Service Level. Any applicable service credits will be credited against amounts subsequently owed by Client, if any or by way of an extension of time under this Agreement.
1.6 Information Security; Business Continuity; Disaster Recovery. Intellum maintains industry standard administrative, physical, and technical safeguards to ensure the security, confidentiality, and integrity of “Client Data” as that term is defined in Section 4.2 herein. Those safeguards include without limitation measures designed to prevent unauthorized access to or disclosure of Client Data. Intellum maintains a disaster recovery and business continuity plan (“Plan”) in accordance with industry standard practices. Upon request by Client, Intellum shall provide Customer with summary level information concerning the Plan, test objectives and results of Intellum’s annual tests of the Plan.
1.7 Support Services. Subject to Client’s payment of the Fees, Intellum shall provide Client with standard support for the Software Solutions in accordance with the descriptions set forth here at no additional charge.

2. FEES AND PAYMENT TERMS

2.1 Fees, Charges and Expenses. In consideration of the rights granted to it by Intellum in this Agreement, Client will be responsible for all fees, charges, costs and expenses identified in the applicable Service Order or elsewhere in this Agreement (collectively, “Fees”).
2.2 Payment Terms. Unless a Service Order provides for different payment terms, Client shall pay Intellum all Fees and payments due for the Solutions within thirty (30) days of the date of Intellum’s invoice which will be issued upon execution of a Service Order. Pursuant to Section 3.4 herein, upon termination or expiration of any Service Order issued hereunder, Client shall pay Intellum in full for all fees and payments for the Solutions set forth in such Service Order.
2.3 Purchase Orders. Client acknowledges that Intellum does not require the issuance of a purchase order ("PO") in connection with Client’s purchase of Intellum’s Solutions. Any decision by Client to issue a PO is solely for Client’s internal administrative or accounting purposes. Such PO shall not be deemed to amend, modify, or supplement the terms of the applicable Service Order which shall control in the event of a conflict. In no event will Intellum delay or postpone invoicing pending receipt of a Client PO. Client remains obligated to pay all Fees in accordance with the payment terms set forth in the applicable Service Order, regardless of whether a PO has been issued or provided. A delay in providing a PO shall not operate to delay or excuse Client’s obligation to timely pay Intellum’s invoices.
2.4 Taxes. Client shall pay applicable sales, use, value added and withholding taxes arising out of or attributable to the provision of the Solutions pursuant to a Service Order, excluding any taxes on the income of Intellum, which shall be the responsibility of Intellum.
2.5 Late Fees. In addition to all other rights that Intellum may have under Applicable Law or at equity, in the event that Client fails to pay any Fees to Intellum when due, and those Fees remain unpaid for fifteen (15) days beyond the day on which the Fees became due, Intellum will have the right to suspend work and/or terminate Client’s rights to any or all of the Solutions, until the delinquent amounts are paid in full, together with interest. Client will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. If Client in good faith believes an Intellum invoice is incorrect, Client must notify Intellum in writing within fifteen (15) days of the invoice date stating the amount in question to be eligible to receive an adjustment or credit. Thereafter, the Parties shall promptly meet to resolve such disputed amount. Pending resolution of a disputed invoice, Client must pay the undisputed amount in accordance with the payment terms agreed upon by the Parties in the Service Order. For avoidance of doubt, the disputed invoice amount will be due and payable by Client immediately upon dispute resolution by the Parties.
2.6 Withholding. Client shall not withhold, reduce, or set-off payments owed under this Agreement or a Service Order due to any claim or alleged breach, including but not limited to a warranty claim, unless Intellum has been given written notice of such claim in accordance with Section 7 and has failed to cure within the applicable cure period as provided therein.

3. TERM AND TERMINATION

3.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall, unless earlier terminated, remain in full force and effect until all Service Orders have terminated or expired.
3.2 Suspension. Without limiting Intellum’s rights under Section 3.3, Intellum may suspend Client’s or any User’s right to access or use any portion or all of the Solutions if Intellum in good faith determines that Client or a User: (i) poses a security risk to or may materially harm the Intellum Software Solutions; (ii) may adversely impact the Software Solutions, systems, or content of that of any other Intellum client; (iii) may subject Intellum, its affiliates or any third party to liability, or (iv) materially violates this Agreement. In such cases, Intellum, in its sole discretion, may elect to provide Client or User with an opportunity to cure a violation before imposing the suspension. Client acknowledges that in the event of any such suspension, Client will not have access to the Software Solutions and may be unable to access any Client Data that is stored within the Software Solutions. Upon any suspension, Client shall remain responsible for all Fees it has incurred through the date of suspension and for any Fees with respect to the Software Solutions to which Client continues to have access and charges for in-process tasks completed after the date of suspension. Intellum’s right to suspend Client’s access to a Software Solution is in addition to any right to terminate the Agreement pursuant to this Section 3.
3.3 Termination for Cause. Without prejudice to any other remedies, either Party may terminate the Agreement for cause if the other Party commits a material breach of this Agreement and the breach remains uncured thirty (30) days after written notice of the breach is delivered to the breaching Party or if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws. Notwithstanding anything to the contrary herein, Client may not terminate this Agreement or a Service Order for breach of the Warranty under Section 7 unless (a) Client has provided written Notice to Intellum of the specific material error or defect in accordance with the requirements of Section 7, and (b) Intellum has failed to cure the material error or defect within thirty (30) days of such Notice.
3.4 Effect. Upon termination of this Agreement for any reason, all rights and licenses granted by Intellum to Client will immediately cease. Within thirty (30) days after termination or expiration of this Agreement, each Party shall return or destroy, except for copies retained for backup or archival purposes (or as required by law), the Confidential Information of the other Party. Client shall pay all fees and payments due Intellum for the Solutions in full within thirty (30) days of any termination or expiration of this Agreement or any Service Order issued hereunder.
3.5 Survival. Any provision of this Agreement that by its terms does not cease to apply as of termination or expiration of the Term (e.g. indemnification and confidentiality obligations) shall survive the termination or expiration of the Agreement.

4. OWNERSHIP

4.1 Intellum Rights. As between Intellum and Client, Intellum shall retain all title, rights, and interest (including but not limited to all worldwide intellectual property rights) in and associated with the Solutions. Intellum owns all Intellectual Property Rights in and to all materials created or provided by Intellum, on the Intellum Software Solutions including texts, graphics, logos, images, any suggestions, contributions, enhancements, improvements, additions, modifications, or Derivative Works, compilations, and collective works of the Software. Client may not remove any proprietary marks or legends from any Software or documentation. No right or implied license or right of any kind is granted to Client regarding the Solutions, including but not limited to any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the Software Solutions or the documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the Software Solutions. No rights are granted to Client hereunder other than as expressly set forth in this Agreement.
4.2 Client Data. As between Client and Intellum, all intellectual property rights in and to the data and content input by or on behalf of Client into the Software Solutions (“Client Data”) are owned by Client. Client is responsible for the security of Client Data when transmitted to and from the Software Solution. Client represents and warrants that (i) it owns or otherwise has the necessary rights to Client Data in order to provide such data to Intellum, and (ii) Client Data does not and will not infringe, misappropriate, or otherwise violate the intellectual property rights, or any privacy or other rights, of any third party or violate Applicable Law. Client warrants to Intellum that Client has the right to provide Client Data to Intellum in accordance with this Agreement. Upon request by Client made within 30 days after the effective date of termination or expiration of the Service Order, Intellum will make Client Data available to Client for export or download in a mutually agreeable format. After such 30-day period, Intellum will have no further obligation to maintain or provide any Client Data and will thereafter delete or destroy all copies of Client Data in the Software Solution or otherwise in its possession or control. Client agrees that Intellum may collect, use and disclose quantitative data derived from Client’s use of the Solutions (“Aggregated Data”) to (i) improve Intellum’s Solutions, (ii) develop new Solutions, (iii) analyze usage, demand and trends, (iv) perform general industry analysis and benchmarking, (v) create written materials, reports, and databases summarizing the foregoing, and (vi) generally for any lawful purpose related to Intellum’s business. Aggregated Data will not include any user personally identifiable information, Client Confidential Information or identify Client or its individual users of Intellum Solutions.

5. CLIENT OBLIGATIONS

5.1 Prohibited Use of Software Solutions. Client shall not (and shall ensure that the Users do not) in using the Software Solutions: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Intellum; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortious, indecent, unlawful, immoral or otherwise objectionable material or information (including but not limited to any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (iv) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Intellum; (v) misrepresent or in any other way falsely identify Client’s identity or affiliation, including but not limited to through impersonation or altering any technical information in communications using the Software Solutions; (vi) transmit or upload any material through the Software Solutions that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Intellum’s, or any other person’s or entity’s, network, computer system, or other equipment; (vii) interfere with or disrupt the Software Solutions, networks or servers connected to the Intellum systems or violate the regulations, policies or procedures of such networks or servers, including but not limited to unlawful or unauthorized altering any of the information submitted through the Software Solutions; (viii) attempt to gain unauthorized access to the Software Solutions, other Intellum clients’ computer systems or networks using the Software Solutions through any means; or (ix) interfere with another third party’s use of the Software Solutions. Intellum has no obligation to monitor Client’s use of the Software and Software Solutions; however, Intellum reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with Applicable Law or governmental request.
5.2 Compliance with Law. Client agrees not to use (and will ensure that its Users do not use) the Software Solutions for illegal purposes and that Client and its Users will comply with Applicable Law. Client is solely responsible for any and all improper use of the Software Solutions that occurs as a direct or indirect result of any act or omission of Client. Client will notify Intellum immediately of any unauthorized use of the Software Solutions or any other breach of security that is known or suspected by Client. “Applicable Law” means any declaration, decree, directive, legislative enactment, case law, order, ordinance, regulation, rule or other binding restriction of or by any governmental authority of competent jurisdiction and any industry self-regulation exercising executive, legislative, judicial, quasi-judicial, regulatory or administrative function of government, including but not limited to any such Law in modified or supplemented form and any newly adopted Law replacing a previous Law, including but not limited to in the applicable territory where the Software Solutions is accessed.

6. NON-DISCLOSURE AND CONFIDENTIALITY

6.1 Disclosure. Each Party may disclose to the other Party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, clients or Users. In no event may the Receiving Party knowingly disclose information to a competitor of the Disclosing Party. “Confidential Information” means any information, written or oral, that is of value to its owner and is treated as confidential, including without limitation, trade secrets, technical and process information, written descriptions, drawings, designs, specifications, notes, training concepts, information pertaining to business operations and strategies, discoveries of a technical nature such as, but not limited to, inventions, computer programs, beta or research projects, product roadmap and information pertaining to Clients, pricing, and marketing; “Disclosing Party” refers to the Party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees, Users or agents; and “Receiving Party” refers to the Party receiving any Confidential Information hereunder, whether such disclosure is received directly or through the Receiving Party’s employees, Users or agents.
6.2 Requirement of Confidentiality. The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its affiliates, officers, employees, Users, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 6.2; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. Client acknowledges that the Software Solutions and documentation are the Confidential Information of Intellum.
6.3 Exclusions. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without access to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
6.4 Compelled Disclosures. In the event that a Receiving Party is required (by oral questions, interrogatories, requests for information or documents in a court or administrative proceeding, subpoena, civil investigative demand or other similar process) to disclose any of Disclosing Party’s Confidential Information or is otherwise required by such process or by Applicable Law to disclose any such information, to the extent permitted by Applicable Law, the Receiving Party will provide Disclosing Party with prompt notice of any such request or requirement so that Disclosing Party, with assistance from the Receiving Party, may, at Disclosing Party’s expense, seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.
6.5 Duration Obligations. For Confidential Information of the Disclosing Party that is a trade secret (as defined under applicable law), the Disclosing Party’s rights and the Receiving Party’s obligations shall last for as long as the Confidential Information continues to constitute a trade secret. For Confidential Information of Disclosing Party that is not a trade secret, the Receiving Party’s obligations shall last for the Term and for three (3) years after the Term.
6.6 Feedback. Any feedback, comments, suggestions or proposed modifications to the Solutions provided by or on behalf of Customer to Intellum may be freely used by Intellum without obligation of confidentiality or other limitation, notice, or duty of accounting.

7. LIMITED WARRANTY

7.1 Limited Warranty. Intellum warrants that it will provide the Solutions in a manner consistent with general industry standards reasonably applicable to the provision of substantially similar solutions, that the Software Solutions will perform substantially in accordance with the documentation under normal use and circumstances and that the Service Solutions shall be provided in a professional and workmanlike manner. If during the Term of this Agreement any product constituting part of the Solutions contains material defects or errors or otherwise fails to conform to its specifications. Intellum will correct such material defect or error by reasonably repairing such defective Software Solution or re-performing the defective Service Solution in a timely manner at its sole expense. This shall be Client’s only remedy with respect to the Solutions that fail to comply with the warranty in this Section. As a condition precedent to any Client remedy for breach of warranty, Client must notify Intellum in writing in sufficient detail of the material error or defect within thirty (30) days of discovery thereof. Failure to provide such Notice to Intellum shall constitute a waiver of the applicable warranty claim. Intellum shall not be liable to cure any material defect or error that is not reported within 30 days of discovery. For avoidance of doubt, no dispute regarding a material error or defect in the Solutions shall affect any of Client’s payment obligations hereunder.
7.2 DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 7, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY INTELLUM. NO WARRANTY IS MADE THAT USE OF THE SOLUTIONS WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SOLUTIONS WILL BE CORRECTED, OR THAT THE SOLUTIONS FUNCTIONALITY WILL MEET CLIENT’S REQUIREMENTS.

8. LIMITATION OF LIABILITY

8.1 Exclusion of Certain Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitation of liability. IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO INTELLUM PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 Exceptions. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION, CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS OBLIGATIONS HEREIN OR TO DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. INDEMNIFICATION

9.1 Intellum Indemnification. Intellum shall defend, indemnify and hold Client and its officers, directors, employees, agents, successors and permitted assigns harmless against any third party claim, suit, action or proceeding (each, an “Action”) based on a claim that Client’s receipt or use of the Solutions in accordance with this Agreement infringes any U.S. intellectual property right of a third party, and shall pay all settlements agreed to by Intellum and damages awarded against Client to the extent based on such an Action; provided, however, that Intellum shall have no obligations under this Section with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Client to Intellum; (b) use of the Solutions in combination with any materials or equipment not supplied to Client or approved by Intellum in writing; or (c) any modifications or changes made to the Solutions by or on behalf of any person or entity other than Intellum. If the Solutions, or any part of them, become, or in the opinion of Intellum may become, the subject of an Action, Intellum may, at its sole discretion: (i) procure for Client the right to use the Solutions free of any liability; (ii) replace or modify the Solutions to make them non-infringing; or (iii) terminate this Agreement.
9.2 Client Indemnification. Client shall defend, indemnify and hold Intellum and its officers, directors, employees, agents, affiliates, successors and permitted assigns harmless against any Actions based on a claim that any information or materials provided by Client, or Intellum’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Intellum to the extent based on such an Action.
9.3 Indemnification Procedures. The Party seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any Action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ competent counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this Section 9 shall not relieve the indemnifying Party of its obligations under this Section except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own cost and expense.

10. GENERAL

10.1 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule. Each Party submits to the exclusive jurisdiction of the courts of the State of Georgia (Fulton County), and each Party waives any objection to venue with respect to the actions brought in those courts.
10.2 Conflicting Terms. The Parties intend for this Agreement to be interpreted in a manner that gives full force and effect to all provisions of all parts of the Agreement. If there is an inconsistency within the Agreement between a provision in the body of this Agreement and any Service Order or other Appendix to this Agreement, the provision in the body of this Agreement will govern unless the conflicting provision elsewhere expressly states that the provision in the body of this Agreement is to be overridden. Provisions in one portion of this Agreement that supplement or expand on or provide specific details regarding provisions in another portion of this Agreement are not “inconsistent” unless they are in fact conflicting.
10.3 Notice. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; or (iii) by a nationally recognized overnight courier service; to a Party’s address set forth on the front page of this Agreement.
10.4 Assignment. Either Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement via a change of control (for example, through acquisition, merger, or substantial asset sale of a Party) (each a “Change of Control”) provided that the assigning Party shall notify the other party of the Change of Control no later than the effective date of the Change of Control. Any other desired assignment, transfer or delegation of any rights under this Agreement by a Party must receive prior written consent by the other Party, which consent shall not be unreasonably withheld or delayed. A written decision providing or withholding consent regarding any other desired assignment, transfer or delegation of any rights shall be given no later than 30 days from the day consent was requested. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. If a Party undergoes a Change of Control, it must provide notice to the other Party within 5 business days after the Change of Control.
10.5 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
10.6 Attorney's Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party. Notwithstanding the foregoing, if Intellum hires an attorney to collect any Fees that Client fails to pay to Intellum when due, Client shall pay Intellum’s costs of collection including, without limitation, attorneys’ fees actually incurred by Intellum, whether or not there is a resulting lawsuit.
10.7 Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the privilege or the exercise of any other right, remedy, power or privilege.
10.8 Force Majeure. Neither Party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of Third Parties (unless the Party is expressly responsible for the acts of the Third Parties under this Agreement). The force majeure exception may not be used to excuse Client’s payment obligations as set forth in any Service Order then in effect.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.10 Relationship of Parties. It is expressly agreed that the Parties shall be independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture or agency. Neither Party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior consent of such other Party.
10.11 Press Releases. Neither Party may make any press releases, public announcements or similar public disclosure relating to this Agreement or its subject matter, including promotional or marketing material, without the consent of the other Party. Any such press release, public announcement or similar public disclosure will be coordinated with and approved by the other Party before release. Notwithstanding the foregoing, at any time after Client's launch of the Software Solutions, Intellum may begin referencing Client as a customer of Intellum in online and printed sales materials including usage of Client's logo. Intellum agrees to abide by Client's logo usage guidelines. Client has the right to revoke such reference and logo usage if Intellum conducts itself in a way that could cause brand damage to Client.
10.12 Counterparts. This Agreement may be executed in counterparts. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall have the same legal effect as an original signed copy.
10.13 Entire Agreement. This Agreement, including the appendices or thereto and all Service Orders entered hereunder, constitutes the entire agreement between the Parties concerning the subject matter of this Agreement and supersedes all written or oral prior agreements or understandings with respect to that subject matter. Any changes to this Agreement or a Service Order must be reduced to writing and signed by both Parties. Should Client issue a purchase order in connection with a Service Order, Client acknowledges that such purchase order is an acceptance of the Service Order, is not a condition for payment, and will not supersede the payment terms or any other terms set forth in the Service Order.
10.14 Authority. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
10.15 Export Compliance. Use of the Software Solutions is subject to Client compliance with applicable U.S. and international export control and trade sanctions laws, rules and regulations (“Export Control Laws”). Client may not export, re-export, download or otherwise transmit the Software Solutions or Documentation in violation of any applicable Export Control Laws. Specifically, Client acknowledges that the Software Solutions and Documentation may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government; or (b) anyone identified on any U.S. Government restricted party lists. Client shall cooperate with Intellum in any inspection, audit or inquiry in respect of the same.