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I have read and understand the end user license agreement.
Please read this Intellezy LLC End User License Agreement ("Agreement") carefully before clicking the "I Agree" button and using any proprietary training and related materials, which may include without limitation training videos, quick reference cards, and/or proprietary learning management systems (“Licensed Materials”).
By clicking the "I Agree" button, downloading, or using any of the Licensed Materials, you are agreeing to be bound by the terms and conditions of this Agreement.
If you do not agree to the terms of this Agreement, do not click on the "I Agree" button and do not use any of the Licensed Materials.
1. License and Term
Intellezy LLC, a Michigan limited liability company (“Company”) grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Licensed Materials set forth in the applicable proposals, schedules, statements of work, or any order for the provision of Licensed Materials as agreed to between you and Company (each an “Ordering Document” and collectively “Ordering Documents”) for your internal training purposes only (the “License”) in accordance with the terms of this Agreement.
The term of this Agreement shall commence on and be effective as of your acceptance of this Agreement, or first use of the Licensed Materials and continue for the period set forth in the applicable Ordering Document, unless earlier terminated in accordance with the terms of this Agreement (the “Term”). All rights not expressly granted to you in this Agreement are reserved by Company.
2. Fees and Payment
(a) As consideration for Company’s grant of the License to you, you agree to pay all fees (“Fees”) set forth in the applicable Ordering Document. Initial payment of Fees is due from you prior to Company’s fulfillment of the License and as required in the applicable Ordering Document.
(b) All Fees owed by you are exclusive of, and you shall pay, all sales, use, VAT, excise, withholding, and other taxes that may be levied in connection with this Agreement. Except as expressly set forth in this Agreement, or an Ordering Document, all fees are non-refundable.
(c) Without limiting Company’s other rights or remedies hereunder, or under applicable law, your failure to make any payments to Company as set forth in this Agreement shall entitle Company to disable and/or suspend your use of the Licensed Materials until such payment is made. Any failure by you to make any payments to Company as set forth herein shall be considered a material breach of this Agreement and will constitute grounds for Company to terminate this Agreement as provided in Section 10 below.
3. Rights and Restrictions
In consideration of the mutual covenants contained herein, you and Company hereby agree as follows:
(a) Obligations of Company.
i. Company will provide the Licensed Materials for your use in accordance with the terms of this Agreement.
(b) Your Obligations.
i. You shall not (and shall not permit your Users (defined below) to): (a) sell, rent, lease, lend, sublicense, resell, distribute, or otherwise transfer or provide access to the Licensed Materials to any person, firm, or entity except as expressly authorized herein, or access the Licensed Materials to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; (b) modify, adapt, alter or create derivative works from the Licensed Materials or to merge the Licensed Materials or any subpart thereof (including proprietary markings) with other services, products or software, or remove or modify any proprietary markings or restrictive legends in the Licensed Materials, except as provided in this Agreement; (c) use the Licensed Materials to: (i) store, transmit or create libelous, obscene, deceptive, defamatory, pornographic, racist, sexual, hateful, unlawful, tortious materials or otherwise objectionable (except as necessary for your instructional purposes, but in all cases in compliance with applicable law and regulation), or (ii) harm or impersonate any person or violate the rights of any third-party rights; (d) interfere with or disrupt the integrity or performance of the Licensed Materials; (e) attempt to gain unauthorized access to the Licensed Materials or its related systems or networks; or (f) introduce viruses, Trojan horses, worms, spyware, or other such malicious code, into the Licensed Materials in whole or in part. For purposes of this Agreement, “User” means an individual or organization that is authorized by you to use the Licensed Materials and for which you have paid for such use, subject to the requirements of this Agreement.
ii. You: (a) are solely responsible for any content provided by you or your Users with respect to the use of the Licensed Materials pursuant to this Agreement and all activities arising from your Users, and (b) must keep all passwords related to the Licensed Materials (“Passwords”) secure and confidential, and notify Company promptly of any known or suspected unauthorized access to the Licensed Materials. Notwithstanding anything set forth in this Agreement, you shall be responsible for any unauthorized use of any Passwords.
iii. You are required to manage and secure the machine(s)/platform(s) on which the Licensed Materials will run.
iv. You shall provide the necessary environment and connections for your use of the Licensed Materials. You are solely responsible for any dangerous or hazardous conditions that may adversely affect the use of the Licensed Materials.
v. You shall comply with all applicable laws in performing your activities and obligations in connection with this Agreement, including your use of the Licensed Materials.
4. Intellectual Property Rights
At all times, the Licensed Materials shall remain the sole and exclusive property of Company, and Company owns all rights, title, and interests, including all intellectual property rights thereto and in all modifications, adaptations, enhancements and derivative works thereof whether made by Company, by you or otherwise. Except as expressly permitted hereunder, you shall not translate, reverse engineer, decompile, disassemble, or modify the Licensed Materials or duplicate the Licensed Materials or portions thereof, or allow any third party to do any of the foregoing. Upon termination or expiration of this Agreement for any reason, you will cease, and will ensure the Users cease, all use of the Licensed Materials. You agree that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. You remain fully liable to Company for all breaches of this Agreement by your Users and any other activity of your Users with respect to the Licensed Materials and this Agreement.
No sharing of usernames and passwords is permitted. You shall be solely responsible for any unauthorized use of the Licensed Materials, usernames and passwords by any Users or third parties. You shall immediately report to Company any actual or suspected misuse of the Licensed Materials or any usernames or passwords to Company.
As between you and Company, Company owns the aggregated and statistical data derived from your (and your Users) use of the Licensed Materials (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Company from utilizing the Aggregated Data, provided that Company’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data provided with respect to the Licensed Materials.
5. Modifications to Licensed Materials
Company reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Licensed Materials or any service to which it connects, with or without notice and without liability to you. You agree that Company may update, upgrade, replace, remove or add (collectively, “update”) additional features to the Licensed Materials that Company deems reasonable, beneficial to you, and/or reasonably necessary so long as such updates do not result in a material degradation of the Licensed Materials.
6. Disclaimer of Warranties
a). Company will not be responsible for damage to the Licensed Materials resulting from any (i) alteration or modification of the Licensed Materials in any manner, or (ii) unauthorized use or abuse of the Licensed Materials.
b. THE LICENSED MATERIALS ARE PROVIDED TO YOU SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
7. Limitation of Liability
COMPANY’S AGGREGATE LIABILITY FOR ALL CLAIMS, LOSSES, LIABILITIES OR DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF THE THEORY OF LIABILITY ASSERTED, IS LIMITED TO NO MORE THAN THE TOTAL AMOUNT OF FEES, IF ANY, PAID TO COMPANY FOR THE LICENSED MATERIALS IN THE THREE (3) MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT. COMPANY SHALL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY THIRD PARTY SOFTWARE, INFORMATION OR MATERIALS SUPPLIED UNDER THIS AGREEMENT. THIS LIMITATION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR FAULT OF COMPANY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY.
You shall indemnify defend and hold harmless, at your sole expense, any claim, demand, or suit (“Claim”) arising out of your (or your Users) use of the Licensed Materials and/or breach of this Agreement; and shall indemnify and hold Company harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorney’s fees) incurred by Company in association with any such Claim.
9. Confidential Information
During this Agreement, you may have access to information that is considered confidential by Company. This information may include, but is not limited to, proprietary materials, technology, know-how, procedures, processes, protocols, specifications, usage metrics, strategic plans, designs, systems, software object code and source code, documentation, sales and marketing plans, results of testing, customer information, financial information, product information, proposed business arrangements, methods of operation and compilations of data (“Confidential Information”). All Licensed Materials shall be considered the Confidential Information of Company.
You shall use Company’s Confidential Information only for the purposes of this Agreement. You shall maintain the confidentiality of Company’s Confidential Information in the same manner in which you protect your Confidential Information of like kind, but in no event shall you take less than reasonable precautions to prevent the unauthorized disclosure or use of Company's Confidential Information. You shall not export, disseminate or otherwise transfer, in writing, orally and/or electronically, Company’s Confidential Information outside of the United States.
You are permitted to disclose Company’s Confidential Information to your employees, contractors and other third parties (“Recipients”) on a need to know basis only for the purposes of this Agreement, provided that such Recipients have contractual or legal confidentiality obligations to you no less stringent than those contained in this Agreement. You shall be and remain fully liable and responsible for your Recipients’ unauthorized disclosure or use of Company’s Confidential Information.
You are permitted to disclose Company’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that you give Company reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of the Confidential Information.
The confidentiality provisions of this Agreement do not apply to information that: (i) was in your possession, as evidenced by written records, prior to receipt of disclosure hereunder; (ii) is or becomes generally available or known to the public through no act or omission of yours; (iii) was received lawfully from a third party through no breach of any obligation of confidentiality owed to Company; or (iv) was created by a party independently of your access to or use of the Confidential Information.
Upon termination of this Agreement, you shall return Company’s Confidential Information and shall not use Company’s Confidential Information for your own, or any third party’s, benefit. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
This Agreement, and your possession and use of the Licensed Materials, shall automatically terminate upon the expiration of the Term. In addition, either party shall have the right to terminate this Agreement upon written notice to the other party if the other party breaches this Agreement and does not cure such breach within thirty (30) days following receipt of written notice thereof. In addition, Company may terminate this Agreement immediately upon written notice for a breach by you of Sections 2, 3, 4 and 9 hereunder.
Upon any non-renewal or termination of this Agreement, you shall immediately deliver the Licensed Materials to Company, or delete all Licensed Materials from your systems and certify such destruction of software to Company.
This Agreement may not be assigned by you, in whole or in part, to any third party without the prior written consent of Company. Any such attempted assignment shall be null and void. Company may freely assign this Agreement to any affiliate or third party, provided that such third party agrees to be bound by the terms hereof.
12. Injunctive Relief
You agree that a breach of this License may cause irreparable injury to Company for which monetary damages would not be an adequate remedy and Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
13. Governing Law and Jurisdiction
This Agreement will be governed and construed solely and exclusively under the laws of the State of Michigan, irrespective of any conflict of law provisions, or any other provisions that would result in the application of a different body of law. Any and all disputes, actions or proceedings arising from or relating to this Agreement must be brought in the Circuit Court of the County of Wayne, State of Michigan. The parties hereby irrevocably submit to the personal jurisdiction and venue of such courts. The parties agree that these courts are convenient forums for any such litigation.
All notices by you under this Agreement must be in writing and sent either by hand delivery; certified mail, return receipt requested; overnight courier; email; or by facsimile (with a confirming copy by certified mail or overnight courier) and will be effective when received by Company at the address and to the contact designated in the applicable Ordering Document.
Company reserves the right to change the terms of this Agreement at any time in its sole discretion. Company shall notify you of such changes by posting the changes on Company’s website. You are responsible for regularly reviewing Company’s website regarding such changes. Continued use of the Licensed Materials after any such changes have been posted shall constitute your agreement to them.
15. Force Majeure
Company shall not be held responsible for any delay, damages or failure of performance to the extent such delay, damages or failure is caused in whole or in part by fire, explosion, power failures, strikes or other labor disputes, water, earthquake, acts of God, elements, war, civil disturbances, acts of civil or military authorities, acts of terrorism, inability to secure materials or transportation, facilities, failure of suppliers, fuel or energy shortages, acts or omissions, unauthorized use of the Licensed Materials, or any other causes beyond Company’s reasonable control, whether or not similar to the foregoing.
This Agreement sets forth the final, complete, and entire agreement between the parties with respect to its subject matter, and supersedes and replaces any prior or contemporaneous agreements, whether written or oral, regarding such subject matter. No additional or different terms on any purchase order or other ordering document of yours shall have any effect on this Agreement, and all such additional or different terms are hereby expressly excluded from this Agreement by the parties. This Agreement cannot be changed except pursuant to a written amendment signed by both parties. No failure by Company to exercise any power, right, privilege or remedy under this Agreement, and no delay on the party of Company in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party, and any such waiver shall only be applicable to the specific instance referenced in such writing. The relationship between the parties hereto is that of independent contractors, and no agency, partnership, joint venture, employment or franchise relationship between the parties is created hereunder. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Agreement. All of your payment obligations, and any provisions which by their terms contemplate continuing effectiveness, shall survive any termination or expiration of this Agreement. If any part of this Agreement shall be held to be void or unenforceable, such part will be treated as severable, leaving valid the remainder of this Agreement notwithstanding the part or parts found to be void or unenforceable. Nothing in this Agreement shall be deemed to create any right or benefit in any person not a party hereto. You agree that nothing in this Agreement shall be deemed to prevent Company at any time from entering into any similar or other business relationship of any kind with any third party for any purpose. All definitions contained in this Agreement apply to both their singular and plural forms, as the context may require. The terms “herein”, “hereunder”, and “hereof” refer to this Agreement.
By clicking “I Accept” or using any of the Licensed Materials, you hereby grant to Company a limited, non-exclusive, royalty free license to use and/or display your corporate name, trademarks and/or logos (the “Marks”) on Company’s web-site and in Company’s sales and marketing collateral. Any of the Marks used and/or displayed by Company in connection with the foregoing shall be and remain your sole and exclusive property. Any and all rights and good will in any of the Marks used and/or displayed in connection with the foregoing shall inure to your benefit.
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