1. ACCEPTANCE OF TERMS

Intellicess, Inc. (“Intellicess”) provides technology-enabled services, including the Software as a Service offerings which are or may be released by Intellicess, including those currently branded as Union and Sentinel RT SAAS LITE, the websites at www.rigdap.com, www.theunion.cloud, www.liken.cloud and www.SentinelRT.com (the “Websites”), any Mobile Apps (as defined below), and other related software, content, APIs and services, including all versions and upgrades thereto (collectively, the “Services). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (“TOS”). Intellicess may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Intellicess.

PLEASE REVIEW THIS TOS CAREFULLY. BY CLICKING “I AGREE” OR A SIMILAR AFFIRMATION OR BY OTHERWISE AGREEING TO THIS TOS OR BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU ARE ENTERING INTO THIS TOS ON BEHALF OF A COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (AN “ENTITY”), YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF THAT ENTITY AND REPRESENTING TO INTELLICESS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS TOS, IN WHICH CASE “YOU” OR ANY SIMILAR LANGUAGE REFERS TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THIS TOS, YOU MUST NOT USE OR AUTHORIZE ANY USE OF THE SERVICES.

THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 15 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER.

2. RIGHTS

(a) Grant. Subject to and conditioned on your compliance with this TOS, Intellicess hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the Services in a secure location only for business use within your systems, networks and devices as well as testing and evaluation of the Services in order to provide Feedback (as defined herein) to Intellicess (“Internal Purposes”). Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Intellicess. Furthermore, you understand and acknowledge that you will need to register for an account on the Services in order for you to access certain functionality of the Services.

(b) Mobile Apps. Intellicess may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this TOS. If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), your use of such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service. This TOS is between you and Intellicess only, and not with Apple Inc. (“Apple”) or any other app store provider, and Apple is not responsible for iOS Mobile Apps and the contents thereof; however, Apple and Apple’s subsidiaries are third-party beneficiaries of this TOS with respect to iOS Mobile Apps.

(c) Trademarks. You may not use the Intellicess or Liken, Union, Sentinel RT SAAS or Sentinel RT SAAS LITE names, brands, trademarks, service marks and logos that Intellicess makes available on the Services (“Marks”). Intellicess claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Intellicess. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Intellicess’s benefit.

3. PRIVACY POLICY; DATA

(a) In addition to this TOS, the Intellicess Privacy Policy posted on the Websites (“Privacy Policy”) applies to how Intellicess may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Intellicess may receive certain information about you, including personal information and Data (as defined below), as set forth in the Privacy Policy, and Intellicess may collect, use, disclose, store, share, and process such personal data and Data in accordance with such Privacy Policy.

(b) You represent, warrant and agree that you have all rights to provide any information, data and other materials that you provide or make available to Intellicess through the Services or otherwise (collectively, the “Data”). You acknowledge and agree that: (i) you will evaluate and bear all risks associated with your use and distribution of all Data and the resulting data from the processing of such Data using the Services; (ii) you are responsible for protecting and backing up the Data; (iii) you are responsible for protecting the confidentiality of all Data in your possession and control; and (iv) under no circumstances will Intellicess be liable in any way for the content of any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages of any kind incurred as a result of your use, deletion, modification, or correction of any Data. You have full discretion and control on how to store, protect, remove or delete any Data on the Services and Intellicess shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Data.

4. PROPRIETARY RIGHTS

(a) You grant Intellicess a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable license to use, access, transmit, host, store and display the Data solely for the purpose of providing and improving the Services, including rights to extract, compile, aggregate, synthesize, use and otherwise analyze all or any portion of the Data.

(b) The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Intellicess retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Intellicess, Intellicess and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Intellicess reserves all rights not expressly granted to you in this TOS. If Intellicess provides any third party and open source software (“OSS”), it will be aggregated and provided as object code in a separate library, but shall not be considered part of the Services. Use of such open source software is subject to the applicable open source license provided with the OSS. You agree to comply with all open source software licenses. You will not distribute the Services or combine it with any other software which would result in an obligation to license the aggregate software in any manner. The OSS attributions and location where the open source version of the OSS is available for download is found at [https://github.com/IntellicessInc/]. Intellicess will provide support for OSS in the binary version provided by Intellicess with the Services as part of support and maintenance. The Services are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.

(c) You may not share your account or password with anyone except to Users (as defined below). You are fully responsible for all activities that occur under your account. You agree to notify Intellicess immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Intellicess reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.

5. USER CONDUCT AND RESTRICTIONS

(a) In your use of the Services, you will not:

(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;

(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;

(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;

(iv) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;

(v) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;

(vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;

(vii) remove or obscure any proprietary notice that appears within the Services;

(viii) impersonate any person or entity, including Intellicess personnel, or falsely state or otherwise misrepresent your affiliation with Intellicess, or any other entity or person;

(ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

(x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or

(xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.

(b) You will not: upload, post, email, store, transmit, or otherwise make available any content that:

(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable;

(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);

(iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;

(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;

(v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;

(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or

(vii) consists of information that you know or have reason to know is false or inaccurate.

(c) Any employee, consultant, contractor or agent hired to perform services for you (“Users”) may operate the Services on your behalf solely under the terms and conditions in this TOS, provided that: (i) such use is only in connection with your Internal Purposes; (ii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iii) you remain fully responsible and liable for any and all acts or omissions by such Users related to this TOS.

(d) Intellicess’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Intellicess, and does not create a private right of action for any other party.

6. CONFIDENTIALITY

(a) Definition. “Confidential Information” means information that either: (i) is designated as confidential by the Discloser (as defined below) at the time of disclosure; or (ii) would reasonably be understood by the Recipient (as defined below), given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the effectiveness of this TOS. Confidential Information of Intellicess also includes the Services and the existence and terms and conditions of this TOS.

(b) Use of Confidential Information. A party which receives Confidential Information under this TOS (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this TOS (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this TOS.

(c) Disclosure of Confidential Information. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below). Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in Section 2 and Recipient will remain responsible and liable for each such person’s compliance with this TOS.

(d) Confidentiality Period. Irrespective of any termination of this TOS, Recipient’s obligations with respect to Confidential Information under this TOS expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets and Data where such obligations will be perpetual).

(e) Exclusions. This TOS imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (d) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.

(f) Return or Destruction of Confidential Information. Upon termination of this TOS or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within seven (7) business days of such request or termination.

7. SALES AND DELIVERY TERMS

(a) Fees . You shall pay all agreed upon fees for the Services as set forth in the Services or otherwise (“Fees”) and in accordance with terms set forth with respect thereto.

(b) Payment Terms. You will pay Fees thirty (30) days after the invoice date. You shall provide Intellicess with complete and accurate billing contact information including a valid email address. All payments to Intellicess are non-refundable except as otherwise expressly provided by Intellicess. All payments will be made in United States dollars via electric funds transfer, as per the instructions of Intellicess. Intellicess may invoice portions of Fees separately or all in one invoice. Any discounts, interests and taxes invoiced shall be allocated equally to each Service and licenses provided hereunder.

(c) Late Payments. If you fail to pay any past due invoice, Intellicess may revoke or suspend the Services until such time as you bring your account completely current. Intellicess may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If you are delinquent in your payments for two (2) consecutive months, Intellicess may, upon written notice to you, modify the payment terms to require full pre-payment of any or all applicable subscription terms (both currently contracted and in the future), or require other assurances to secure your payment obligations hereunder.

(d) Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Intellicess’s net income, and you shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If you are legally required to withhold any amounts to be paid to Intellicess, you will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to Intellicess on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit Intellicess to establish Intellicess’s right to a credit for such taxes against Intellicess’s income tax liability. You shall provide Intellicess with such assistance as Intellicess shall reasonably request in connection with any application by Intellicess to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.

8. FEEDBACK

If you elect to provide or make available to Intellicess any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Intellicess shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.

9. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES

The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that such terms and policies are solely between you and the advertiser or other third party. You agree that Intellicess does not endorse and is not responsible or liable for any issues related to Third Party Services.

10. INDEMNIFICATION

(a) You shall indemnify and hold Intellicess and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Intellicess Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Intellicess; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this TOS.

(b) Intellicess will defend, at its own expense, and hold you harmless against any claim, suit or action brought against you by a third party to the extent that such claim, suit or action arises from an allegation that the Services, when used as expressly permitted by this TOS , infringes the intellectual property rights of such third party (“Customer Claim”), and Intellicess will indemnify you from liability incurred by you to the extent arising from such Customer Claim. If Intellicess receives prompt notice of a Customer Claim that, in Intellicess’s reasonable opinion, is likely to result in an adverse ruling, then Intellicess may (i) obtain a right for you to continue using the Services at issue; (ii) modify such Services to make it non-infringing; (iii) replace such Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services.

(c) Intellicess Indemnity Limits. Notwithstanding the foregoing, Intellicess will have no obligation under Section 10(b)or otherwise with respect to any infringement claim based upon: (i) any use of the Services not expressly permitted under this TOS; (ii) any use of the Services in combination with products, equipment, software, or data not made available by Intellicess if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Services by any person other than Intellicess or its authorized agents or subcontractors (collectively, “Excluded Claims”). Intellicess will have no obligation under Section 10(b) or otherwise with respect to any claim based upon the use by you of any Data uploaded or accessed through the Services to the extent such claim is not based on the Services itself. Section 10(b) states Intellicess’s sole liability and your exclusive remedy for all third party claims.

(d) Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

11. DISCLAIMER OF WARRANTIES

(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INTELLICESS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

(b) INTELLICESS PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.

(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.

(d) THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).

12. LIMITATION OF LIABILITY

(a) INTELLICESS PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF INTELLICESS PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL INTELLICESS PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO INTELLICESS FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.

(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. TERM; SUSPENSION AND TERMINATION

(a) Either party may terminate this TOS at any time.

(b) If you violate this TOS, Intellicess may, with or without notice to you, immediately suspend or terminate your access and use of the Services.

(c) Intellicess reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Intellicess shall not be liable to you or any third party for any such modification or discontinuance;

(d) Upon termination of this TOS for any reason: (i) licenses granted under this TOS will immediately terminate; (ii) Intellicess, in its sole discretion, may remove and discard your content and information; (iii) you will immediately cease your use of the Services and shall cause any Users to cease their use of the Services; (iv) you will destroy the Services and any Confidential Information in your possession, or upon Intellicess’s request, return to Intellicess any such Confidential Information; (v) any and all of your payment obligations will immediately become due; and (vi) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Intellicess shall not be liable to you or any third party for any termination of your account or access to the Services.

14. GOVERNING LAW

This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.

15. BINDING ARBITRATION AND CLASS ACTION WAIVER

(a) ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

(d) Notwithstanding anything to the contrary, you and Intellicess may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.

(e) If Intellicess implements any material change to this Section 15, such change shall not apply to any claim for which you provided written notice to Intellicess before the implementation of the change.

16. LEGAL COMPLIANCE

You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

17. U.S. GOVERNMENT ENTITIES

This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.

18. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Intellicess’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Intellicess’s Agent for Notice of Copyright Claims. Intellicess’s Agent for Notice of Copyright Claims can be reached as follows:

Agent for Notice of Copyright Claims
[Intellicess Inc., 7000 North Mopac Expressway Suite 200, Austin, Texas 78731]

Phone Number: [xxx-xxx-xxxx]
Email: [info@intellicess.com]

19. CALIFORNIA USERS AND RESIDENTS

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

20. GENERAL PROVISIONS

This TOS constitutes the entire agreement between you and Intellicess concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Intellicess with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Intellicess. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Intellicess. The failure of Intellicess to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Intellicess hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.