Effective: Updated January 1, 2021
This Policy applies to information we collect or is submitted to us through:
- The website at intertech.com (“The Website”)
- Social media applications like Facebook, Instagram, LinkedIn, and Twitter (“Social Media”)
- Email and other electronic messages, except for personal messages sent to our clients.
- Interactions with advertising and applications on third-party websites and services, if those applications or advertising include links to this Policy.
This Policy does not apply to information collected by:
- Us offline or through any other means.
- Any third party, including through any application or content (including advertising) that may link to or be accessible from or on the Website or Social Media.
All personal information that you provide on the Website or Social Media is voluntary. If you submit personal information, you agree that we may keep a record of that personal information. You also agree that if you choose not to provide all requested information, our ability to process the requested information for the purpose for which you’ve consented may be limited.
WHAT INFORMATION IS COLLECTED
We collect several types of information from and about users of the Website and Social Media, including information:
- By which you may be personally identified, like name, postal address, email address, employer information, telephone number, IP address or any other identifier through which you may be contacted or identified (“Personal Information”).
Personal Information. Personal Information that we collect may also include:
- Information that you provide by filling in forms, such as when you submit an employment application, register for an event, request information, enter a promotion, report a problem with the Website, or otherwise contact us via the Website. These identifiers may include your name, alias, postal address, and any other unique personal identifiers that you provide us.
- Content that you authorize us to access, publish, and view on Social Media.
- Records of your correspondence (including email addresses), if you contact us.
- Your search queries and content viewed on the Website.
You also may provide information to be published or displayed (hereinafter, “posted”) on public areas of the Website or Social Media, or transmitted to other users of the Website, Social Media or third parties (collectively, “User Contributions”). Your User Contributions are posted on and transmitted to others at your own risk. Additionally, we cannot control the actions of other users of Social Media. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed or used by unauthorized persons and/or in unauthorized manners.
Other Information. Each time a computer visits the Website or Social Media to read or download information, we may collect certain information from that computer. This information is automatically collected from the user’s computer and may include information like the following:
- Type of web browser being used (for example, Chrome, Safari or Firefox).
- Name of the Internet domain from which your computer accessed the Website or Social Media.
- Address of the website that connected you to Website or Social Media (like google.com or bing.com)
- Date and time your computer accessed the Website or Social Media.
In order to better respond to your specific requests or provide you services, we may associate such other information to Personal Information that you have provided through the Website or Social Media.
HOW INFORMATION IS COLLECTED
We collect this information directly from you when you provide it to us and automatically as you navigate through the Website or Social Media. Information collected automatically may include such other information, and information collected through cookies and other tracking technologies.
We may place a text file called a cookie in the browser files of computers that visit this Website. Cookies are small files that a site or its service provider transfers to your computer’s hard drive through your Web browser (if you allow) that enables the sites or service providers systems to recognize your browser and capture and remember certain information. Cookies also allow your computer to utilize all the features on this Website.
You are always free to decline our cookies if your browser permits, and those cookies will no longer collect information from you, but some parts of our Website may not work properly for you if you do so.
HOW WE USE INFORMATION COLLECTED
Any of the information we collect from you may be used in one or more of the following ways:
- To present the Website, Social Media, and its contents to you.
- To improve our website and customer service
- To contact you to provide information or services that you request from us.
- To send periodic emails.
- To notify you about changes to the Website, Social Media or any services we offer or provide though it.
- To fulfill any other purpose for which you provide it.
- To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
- In any other way that we may describe when you provide the information.
- For any other purpose with your consent.
We will use other information to help us make our Website more useful to visitors and for other business purposes. For example, we may tell business partners how many computers visited this Website. We may also use other information in cookies to help us to personalize this Website according to the preferences you tell us, and make your visit a more convenient experience. We may prepare reports and other materials using other information. Since these reports and materials contain no Personal Information, we may share them with others.
DISCLOSURE OF YOUR INFORMATION
We may disclose aggregated information that does not contain Personal Information about our users without restriction.
We may disclose Personal Information that we collect:
- To our subsidiaries and affiliates.
- To contractors, service providers and other third parties we use to support our business.
- To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation or similar proceeding, in which Personal Information held by Intertech about the Website and Social Media users is among the assets transferred.
- To fulfill the purpose for which you provide it.
- For any other purpose disclosed by us when you provide the information.
- With your consent.
We may also disclose your Personal Information:
- To comply with any court order, law or legal process, including to respond to any government or regulatory request.
- If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Intertech, our customers or others.
HOW WE PROTECT YOUR INFORMATION
We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration and disclosure.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your Personal Information, we cannot guarantee the security of your Personal Information transmitted to our Website. Any transmission of Personal Information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.
We use these third-party technologies to track aggregated website behavior, such as what pages you looked at, for how long, and so on. This information is important to us for improving the user experience and determining site effectiveness.We currently use:
- Google Analytics Demographics. You can opt-out of Google Analytics for Display Advertising and customize Google Display Network ads through the following link: https://www.google.com/setting…
- You can opt-out of advertising and email through the procedures described in the following link: https://6sense.com
We do not directly control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly or you may contact us.
DATA PROTECTION MEASURES
Intertech is committed to ensuring the security of your Personal Information through reasonable and appropriate measures to protect it from loss, misuse, and unauthorized access, disclosure, alteration and destruction, taking into due account the risks involved in the processing and the nature of the Personal Information. Intertech utilizes technological, physical and administrative security procedures to do so.
PRIVACY ON THIRD-PARTY WEBSITES AND SOCIAL MEDIA
We may also provide social media features that enable you to share information with your social networks and to interact with Intertech on various social media sites. Intertech is not responsible for the Personal Information you choose to provide in these forums. If you post, comment, indicate interest or complaint, or share Personal Information, including photographs, to any social network, blog, or other such forum, upon which Intertech has an account, please be aware that any information you submit can be read, viewed, collected, or used by other users of these forums, and could be used to contact you, send you unsolicited messages, or for purposes over which neither you nor Intertech have control. Your use of these features may result in the collection or sharing of information about you, depending on the feature. We encourage you to review the privacy policies and settings on the social media sites with which you interact to make sure you understand the information that may be collected, used, and shared by those sites.
NOTICE TO EUROPEAN UNION USERS
Intertech’s operations are located in the United States. If you provide information to us, the information will be transferred out of the European Union (EU) to the United States. By providing Personal Information to us, you are consenting to its storage and use as described herein.
DO NOT TRACK MECHANISMS
Your browser may deliver a “Do-Not-Track (‘DNT’) signal” to this Website. Because of the changing state of technology and indecision within the technology and marketing industries regarding the meaning of DNT signals, we currently do not make any guarantee that we will honor DNT signals.
ACCESS, CORRECTION, OBJECTION AND PORTABILITY RIGHTS
You have the right to request access to, rectification of errors in, or erasure of your Personal Information. You also have the right to object to the processing of your personal data and to receive a copy of your Personal Information in a structured, commonly used, and machine-readable format. For individuals in the EU, the United Kingdom, or Switzerland, you may always lodge a complaint with your local data protection supervisory authority.
You may send us an email at infor!intertech.com, together with proof of your identity, to request access, correction, cessation, erasure, portability and/or objection to processing of any Personal Information that you provided us. We may not fully accommodate a request if the request would violate applicable law or is not required (in full or in part) under applicable law.
INTERTECH DOES NOT SELL YOUR INFORMATION
Intertech does not sell your personal information.
You have the right to request that we delete your Personal Information from our records and direct any service providers to delete that Personal Information from their records. After we receive and verify your request, we will delete that Personal Information unless a legal exception applies.
Any request to exercise your rights under the California Consumer Privacy Act should be submitted either via email to firstname.lastname@example.org or via phone to 651.288.7000. We will not discriminate against you for exercising any of your above rights.
CHILDREN UNDER THE AGE OF 18
Protecting the privacy of minors is important. For that reason, we never collect or maintain information at our website or Social Media from those we actually know are under 18. If we learn we have collected or received Personal Information from an individual under 18 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 18, please contact us at email@example.com and we will delete it accordingly.
It is our policy to post any changes we make to the Policy on this page. If we make material changes to how we treat our users’ Personal Information, we will notify you through a notice in the footer (referencing our Policy) on the Website home page. The date the Policy was last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting our Website and this Policy to check for any changes.
YOUR ACCEPTANCE OF THIS POLICY
Unless otherwise required by applicable law, by your use of the Website or Social Media, you are entering into a binding contract with Intertech and are consenting to the use of your information as explained in this Policy. We may change or add to our Policy, so we encourage you to review it periodically. If you don’t agree with these terms or any future changes, then please don’t use or interact with Intertech through the Website or Social Media.
TERMS & CONDITIONS
A client (“Client”) of Intertech, Inc. (“Intertech”) is bound to these Terms and Conditions (“Terms and Conditions”) when it executes a Statement of Work, as defined below, that has authorized Intertech to provide services and expressly agreed to the terms and conditions set forth at this URL (intertech.com/privcacyandterms). Intertech and Client may be referred to hereunder individually as a “Party” and collectively as the “Parties”. The “Effective Date” will be the date of the applicable Statement of Work.
In consideration of the mutual covenants and promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
- DEFINITIONS; INTERPRETATION. Capitalized terms used herein will have the meanings ascribed to them in these Terms and Conditions. Words other than those defined herein will be given their plain English meaning, except for terms of art having specialized meanings in the software development and consulting industry, which will be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and words importing the masculine include the feminine and vice versa.
1.1. Affiliate. “Affiliate” means any person or entity controlled by, controlling, or under common control of a Party. “Control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than 50% of the aggregate of all voting equity interests in the entity.
1.2. Agreement. “Agreement” means: (a) these Terms and Conditions and (b) any Statement(s) of Work, now or hereafter existing, which are hereby incorporated by reference.
1.3 Client Deliverables. “Client Deliverables” means anything that is designed, developed, and/or customized for a Client as specifically set forth in a Statement of Work, but excludes all Third Party Software, Tools and Delivered Tools.
1.4. Confidential Information. “Confidential Information” includes any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed deliverables and services, and includes, without limitation, information concerning current, future, and proposed Client Deliverables, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, marketing plans and information, rates, estimates, proposals, statements of work, statements of work, and communications between the Parties.
1.6. Deliverables. “Deliverables” means collectively, the Client Deliverables and Delivered Tools.
1.7. Delivered Tools. “Delivered Tools” are Tools, whether or not modified by Intertech pursuant to this Agreement, where copies of such Tools are delivered to the Client as part of the Deliverables.
1.8. Disclosing Party. “Disclosing Party” is the Party to this Agreement that discloses Confidential Information to Receiving Party.
1.9. Expenses. “Expenses” includes costs related to: travel that Client has approved in writing; licenses; software; any sales, use, excise, or similar tax on products or services purchased on Client’s behalf by Intertech; shipping costs incurred to ship materials to Client; and any third-party fees, including but not limited to those resulting from credit card payments, wire transfers, or bounced checks of Client. Other than travel costs, Expenses do not require Client approval.
1.10. Receiving Party. “Receiving Party” is the Party to this Agreement to whom Confidential Information is disclosed by Disclosing Party.
1.11. Scope Change. “Scope Change” means a written request by either Party to change any individual Statement of Work.
1.12. Services. “Services” means all services performed by Intertech pursuant to this Agreement.
1.13. Statement of Work. “Statement of Work” is a detailed document describing the services, functions, responsibilities, and projects to be performed thereunder, expressly referencing Intertech’s Terms and Conditions, or any similar document signed by the Parties’ authorized representatives that does not include a reference to any master services agreement, terms and conditions or similar agreement. Work authorizations, proposals, estimates, scopes of work, letters of intent and similar documents shall each be treated as a “Statement of Work” hereunder, unless or until superseded by a subsequent Statement of Work.
1.14. Third Party Software. “Third Party Software” means any code or software, including libraries, or other intellectual property, developed by a third-party. Third Party Software includes any software, programming or other intellectual property that: (a) contains or is derived in any manner (in whole or in part) from any software that is distributed as free software, open source software, shareware or similar licensing or distribution models; or (b) is subject to any agreement with terms requiring that such intellectual property be (i) disclosed or distributed in source code or object code form; (ii) licensed for the purpose of making derivative works; and/or (iii) freely redistributable by end users to third parties without payment of compensation.
1.15. Tools. “Tools” means any tools or software used by Intertech to create, debug, maintain, or otherwise support, programs, software, and applications and includes material of a general abstract character that is used in, enhanced, or developed in the course of providing Services including: methodologies; delivery strategies, approaches, and practices; generic software tools, routines, and components; generic code libraries and code snippets, both open source and proprietary to Intertech; generic content, research and background materials; training materials; application building blocks; templates; analytical models; project tools; inventions; solutions and descriptions thereof; know-how; and ideas.
1.16. Order of Precedence. The provisions of these Terms and Conditions will control over any conflicting provisions in a Statement of Work, unless the Statement of Work indicates the clear intent of the Parties that such conflicting provision prevail over a term or condition of these Terms and Conditions for that particular Statement of Work. A Statement of Work may also contain additional terms. The provisions of these Terms and Conditions will control over any standard or boilerplate terms and conditions included on any document provided by Client to Intertech, including but not limited to purchase orders. Any such terms are unacceptable to and expressly rejected by Intertech, are hereby waived by Client, and are not part of this Agreement.
1.17. Interpretation. The use of the terms “including,” “include”, or “includes” will in all cases herein mean “including without limitation,” “include without limitation”, or “includes without limitation,” respectively.
1.18. No Primary Drafter. The Parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises will not be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but will be construed according to the intent of the Parties as evidenced by the entire Agreement.
- SERVICES. Subject to the terms of payment set forth herein, Intertech agrees to provide Services and/or deliver Deliverables for Client as described in this Agreement.
2.1. Work by Intertech. All Services performed and Deliverables provided under this Agreement will be performed under an individual Statement of Work, except as set forth in Section 2.6 below. Each Statement of Work will provide a description of the Services. Client acknowledges that features and functionality, including, but not limited to, wireframes, designs, descriptions, and itemized functionality, set forth in any documents other than the executed Statement of Work, will not be part of this Agreement unless expressly included in a Statement of Work. Client shall verify that the Statement(s) of Work provide a complete and unambiguous description of the requirements and specifications that it requires in the Services and/or Deliverables. Services may be billed at one of the following methods or such other method as the Parties may agree in the Statement of Work:
- Fixed Price. Services completed for a fixed price are designated as “Fixed Price” projects. The Fixed Price does not include Expenses incurred by Intertech. Client shall be responsible for all Expenses incurred. Fixed Price projects are limited to the Services described in the applicable Statement of Work; if additional Services are requested and agreed to by the Parties, the Fixed Price will be adjusted.
- Time and Materials.Services completed at an hourly rate are designated as “Time and Materials” projects. Effort to complete Time and Materials projects is based on an estimated number of hours, which estimate shall be made in good faith. Client will be billed for every hour worked. Client shall be responsible for all Expenses incurred.
2.2. Cooperation. Client shall assist Intertech in the performance of its obligations under this Agreement and shall undertake the responsibilities specified for Client in the Statement of Work.
2.3. Client Representative. Client shall assign and make available to Intertech a designated representative who will be authorized to make binding decisions for Client regarding the obligations which are the subject of this Agreement, and shall perform or have performed other duties and requirements of Client as set forth in this Agreement or in an applicable Statement of Work. Client understands that Intertech will rely upon Client Representative as having the authority specified in this Section.
2.4. Location of Performance. Unless otherwise agreed to in advance by the Parties, Intertech shall perform all Services in the United States at Intertech office location selected by Intertech. For purposes of this Agreement, employees of Intertech based out of their home office are considered to be working from an office location of Intertech. If Client, expressly, or impliedly by the nature of work required, requires Intertech to complete the Services at any location other than an office location of Intertech, Client shall be responsible for fees for travel time and all travel, lodging, and food expenses incurred by Intertech in providing Services at the alternate location.
2.5. Change Requests. Either Party may request changes to any individual Statement of Work by submitting a written Scope Change to the other Party, which such Party may accept or reject in its sole discretion. If the Parties agree to a Scope Change, Intertech shall provide a good faith estimate of the cost and Expenses for the Scope Change. Upon signed acceptance of the Scope Change, Client shall be responsible for any additional time and Expenses for any changes to the Services. Unless otherwise directed in writing by Client and agreed by Intertech, during the consideration by Client of a Scope Change, Intertech shall continue to work pursuant to the existing Statement of Work. Notwithstanding the foregoing, Intertech retains the right in its discretion and without liability to Client, to change the methods, processes, and/or the suppliers by which Intertech provides Services to Client, provided that the Services continue to comply with all requirements set forth in the applicable Statement of Work.
2.6. Services Not Covered by Statement of Work. In the event Intertech performs Services for Client not covered by a valid Statement of Work and Client accepts those Services and/or Deliverables, Intertech will be compensated for those Services and/or Deliverables at the current rate of Intertech for such Services.
- INVOICES; PAYMENTS.
3.1. Invoicing of Fees and Expenses. Client acknowledges and agrees that the timing of payments owed to Intertech reflects the timing of Services provided. As such, Intertech reserves sole discretion in determining to extend any credit to Client based on a credit review. Payment terms will be determined accordingly. Unless agreed otherwise in writing, Client shall pay all invoiced amounts due to Intertech within 15 days from the date of Intertech’s invoice. Client shall make all payments hereunder in US dollars. If the Parties agree to a down payment in a Statement of Work, then Intertech may invoice the down payment upon execution of the applicable document by Client, unless the Parties expressly agree otherwise. Invoices for Time and Materials projects will provide a general description of the tasks completed as set forth on the internal work order title under which the task was assigned by Intertech and time-accrued for each task; invoices for Fixed Price projects will not include any information other than the amount owed. If Client requests information in addition to that included on their invoice, Client shall pay Intertech the reasonable fees and costs incurred in gathering requested information.
3.2. Past-Due Invoices. All past-due invoices are reviewed and Intertech reserves the right to take any or all of the following actions in the event an undisputed invoice is not paid within the specified time period:
- Notify Client of the delinquent payment by phone and/or email and request payment;
- Immediately discontinue, delay, or place on hold its Services without regard or liability for any project deadlines or other provisions of this Agreement or applicable Statement(s) of Work; and/or
- Cancel its Services for pending and/or future projects.
3.3. Late Payments. Any payment not received within the specified time period set forth hereunder, or on the invoice, except with respect to charges then under a reasonable and good faith dispute, will accrue interest at the lesser of (a) a rate of 1.5% per month, or (b) the highest rate allowed by applicable law. Client shall also pay to Intertech all costs and Expenses incurred by Intertech in exercising any of its rights under this Agreement or applicable law with respect to recovering any amount owed to Intertech hereunder, including, but not limited to, reasonable attorneys’ fees and costs.
3.4. Changes to Payment Terms. Following a payment default by Client, billing terms and service fees may be adjusted from time to time at the sole discretion of Intertech and upon 30 day written notice to Client. Intertech also reserves the right to change its billing practices, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
3.5. Client Acting on Behalf of End-Client. In the event that Client is acting as a designated and authorized agent of an end-client in this Agreement, Client remains responsible for all payment obligations incurred pursuant to this Agreement, regardless of the fiscal status of said end-client.
- RECORDS AND AUDIT.
4.1. Records. Intertech will maintain records of invoices and third-party expense receipts for all fees and Expenses for which Intertech seeks reimbursement by Client. These records exclude any documentation that contains Intertech’s Confidential Information related to its employees’ individual salaries, time sheets, and non-billable expenses. These records will be reduced to electronic files and be maintained for a minimum of 2 years from the end of the year in which they were incurred.
4.2. Audit. Client may request access to the records described in Section 4.1, “Records”, for purposes of audit, either through its own employees or through its duly authorized representative, selected and paid by Client, upon 10 business days prior written notice to Intertech. The notice of audit must state the scope of the audit and identify the information needed, and propose sampling methodologies. All auditors will be required to sign confidentiality agreements provided by Intertech prior to the release of any information by Intertech. Intertech will be entitled to receive copies of the draft and final audit reports, and will have the right to review and comment on audit findings prior to or simultaneous with the release to Client. Intertech’s comments will be noted in the final report. Audits requested by Client will be limited to 1 every 2 years and conducted on such days as are reasonably acceptable to Intertech, during normal business hours. Client will bear any expenses incurred by Client or its auditor. Client will also reimburse Intertech for any reasonable expenses directly attributable to any audits conducted under this Section 4.2 that exceed 2 business days. Any data and results gathered from the audit may not be stored in a data warehouse for purposes of aggregation or analysis.
- OWNERSHIP OF SOFTWARE.
5.1. Client Ownership of Client Deliverables. All of Intertech’s right, title and interest in and to the Client Deliverables that are the subject of the applicable Statement of Work are hereby automatically assigned to Client upon payment in full of all amounts owed by Client to Intertech.
5.2. Client License to Delivered Tools; Perpetual License. To the extent Delivered Tools are provided with or reflected in the Deliverables, and to the extent of Intertech’s rights, Intertech hereby grants Client a perpetual, nonexclusive, transferable, irrevocable, royalty-free, fully paid up right and license to use, copy, modify, and prepare derivative works of the Delivered Tools.
5.3. Third Party Software. Client acknowledges and agrees that certain software developed by Intertech may contain Third Party Software and, notwithstanding anything to the contrary in this Agreement, the use and disclosure of Third Party Software is at all times subject to the terms and conditions set forth in their respective licenses. Intertech makes no representations or warranties of any kind with respect to the Third Party Software. For any Third Party Software, Client shall: (a) procure all Third Party Software licenses described in a Statement of Work as required for the Services and/or Deliverables in that Statement of Work; and (b) comply with all Third Party Software license terms and acceptable use policies.
5.4. Tools and Delivered Tools. Intertech is and will remain the owner and/or licensee of all right, title and interest in and to any Tools, including Delivered Tools. Client acknowledges and agrees that neither these Terms and Conditions nor any Statement of Work transfers or grants Client any rights, title, or interest in and to the Tools. Client’s only rights to the Delivered Tools are as specified in Section 5.2 and no other rights to the Delivered Tools are provided by implication, estoppel or any other legal theory.
5.5. Perfecting Client Ownership of Client Deliverables. Intertech, at its standard rate, will provide reasonable and timely assistance and execute all documents necessary to enable Client to perfect, preserve, register, or record its rights, as set forth herein, in the Deliverables.
- SCHEDULE. Client hereby acknowledges and agrees that the development of Services and/or Deliverables under this Agreement is an endeavor for which anticipated time, effort, and Expenses can only be estimated. Client further acknowledges that any statements by Intertech of anticipated start and completion dates, effort, and Expenses are estimates only and Intertech cannot and does not make any guarantee as to start and completion dates, effort, and Expenses.
- REPRESENTATIONS AND WARRANTIES.
7.1. Intertech and Client each represent and warrant that:
- it has the full power and authority to enter into and perform its respective obligations pursuant to this Agreement in full accordance with the terms hereof;
- this Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against such Party in accordance with its terms; and
- entering into and performing its respective obligations pursuant to this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party.
7.2. Intertech represents and warrants that:
- the Services and Deliverables will be provided by personnel in a workmanlike and professional manner; and
- in providing the Services and Deliverables hereunder, it shall comply with all applicable U.S. federal, state, and local laws, ordinances, rules and regulations, and agrees to procure and maintain, at its own expense unless otherwise agreed, all necessary permits and licenses, except that unless otherwise set forth in the Statement of Work, Intertech makes no certifications, representations, or warranties that the Services and Deliverables comply with the Children’s Online Privacy Protection Act of 1998, Health Insurance Portability and Accountability Act of 1996, Gramm-Leach-Bliley Act (also known as the Financial Services Modernization Act of 1999), Payment Card Industry Data Security Standard, Sarbanes-Oxley Act of 2002, and Americans with Disabilities Act of 1990, in all cases as amended from time to time.
7.3. Client represents and warrants that:
- if it conceives, provides, develops, requests Intertech to use and/or develop, reduces to practice, writes, designs, implements or delivers any intellectual property in connection with or related to the Services at any time (the “Client Inputs”), then any such Client Inputs will not, nor cause any of the Deliverables, or other material, data, information, or Services to: (i) infringe upon any intellectual property rights of any person, business, or entity; (ii) violate any law, statute, ordinance, or regulation, governmental or otherwise; (iii) result in product liability, tort, breach of contract, personal injury, death or property damage; (iv) constitute misappropriation of any intellectual property rights, trade secret or proprietary know-how; or (v) constitute a disclosure of any confidential information owned by a third party;
- it has full and legal right to disclose, transfer, assign, convey, and/or authorization to use such intellectual property rights or information referenced in this Section 7.3; and
- it will not export or re-export, either directly or indirectly, the Services or Deliverables, or related technology in violation of U.S. export control laws, including but not limited to the Export Administration Act of 1979, 50 U.S.C. App. §§ 2401-2420, the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1707, the Arms Export Control Act, 22 U.S.C. 2778, and any regulations, orders or rule issued pursuant thereto (“U.S. Export Controls“) and will obtain any and all licenses, filings, registration and approvals required for export or re-export of the Services or Deliverables under U.S. Export Controls. Client further covenants that it will not export or re-export the Services or Deliverables to a party listed on any of the lists maintained by the U.S. Department of Commerce, the U.S. Department of the Treasury or the U.S. Department of State, found at www.bis.doc.gov/images/consolidated_list/consolidated_party_list.txt, to any person owned or controlled by such person or to any embargoed country in violation of U.S. export control laws.9.1 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, INTERTECH AND ITS AGENTS, OFFICERS, MANAGERS, DIRECTORS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SERVICES AND DELIVERABLES “AS IS, WITH ALL FAULTS,” AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. INTERTECH DOES NOT WARRANT THAT ANY SOFTWARE DEVELOPED BY INTERTECH WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, THAT THE FUNCTIONS CONTAINED IN SUCH SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. UNLESS MEMORIALIZED IN A STATEMENT OF WORK, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INTERTECH OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
- INDEMNIFICATION. Indemnification by Intertech.Intertech agrees to defend and indemnify Client and its Affiliates, from and against any and all damages, costs, and expenses (including reasonable attorneys’ fees, expenses, and costs) solely arising from any suit filed by a third party, alleging that the Services used in the creation of the Deliverable hereunder, directly or indirectly, infringes any intellectual property rights of that third party.
- The indemnification obligations in this Section will not apply to any suit for which the Service and/or Deliverable: (i) is a component of or utilized in a process, work product, or third-party deliverable; (ii) is created pursuant to designs, ideas, instructions, materials, requirements, or specifications of Client; (iii) was modified by any party other than Intertech; or (iv) cannot reasonably be considered to infringe, directly, contributorily, or by active inducement.
- In connection with its obligations in this Section, if a Service and/or Deliverable is alleged or Intertech reasonably believes may be alleged to infringe, Intertech, in its sole discretion, may: (i) procure for Client and its customer(s) the right to continue all acts in relation to the Service and/or Deliverable; or (ii) replace the Service and/or Deliverable with a non-infringing alternative with performance and pricing that is at least equal to the performance and pricing of the Service and/or Deliverable.
- The total liability of Intertech to Client under this Section will be limited to the amounts paid by Client under the applicable Statement(s) of Work under which the allegedly infringing Service and/or Deliverable was developed.
- This Section states the entire liability of Intertech and the sole and exclusive remedy for Client with respect to any third party claim of infringement or misappropriation of intellectual property rights.
9.2. Indemnification by Client. Client agrees to defend and indemnify Intertech, its Affiliates, agents, officers, directors, employees, successors, and assigns from and against any and all damages, costs, and expenses (including reasonable attorneys’ fees, expenses, and costs) solely arising from:
- Any suit filed by any third party, arising from a breach by Client, its officers, its employees, or its agents, of any warranty or representation contained in this Agreement; or
- Any suit filed by any third party, arising from or relating in any way to Intertech having followed or implemented designs, instructions, requirements, or specifications in the Service and/or Deliverable provided by Client, and Intertech thereby infringed, breached, or violated an intellectual property right, right of privacy, or any common law rights.
9.3. Indemnification Requirements. With respect to any indemnification obligations in this Section, the indemnitee shall:
- Notify the indemnifying party in writing promptly after the indemnitee becomes aware of the claim for which the indemnification obligation applies;
- Subject to the terms set forth in Section 9.4, “Assumption of Defense”, allow the indemnifying party control of the investigation, defense, and settlement of the claim; and
- Cooperate with the indemnifying party in the defense of the claim (at the reasonable expense of indemnifying party).
For all actions under this Section, the indemnifying party shall defend the indemnitee with counsel that is reasonably acceptable to the indemnitee.
9.4. Assumption of Defense. If the indemnifying party assumes the defense of a claim under this Section, it shall keep indemnitee reasonably informed of the progress of the defense, compromise, or settlement and permit indemnitee to participate in the suit in an advisory capacity. If indemnifying party fails to assume the defense of any claim within 15 calendar days after receipt of notice of the claim, indemnitee will (upon notice to indemnifying party) have the right to undertake, at expense of indemnifying party, the defense, compromise, or settlement of the claim, subject to the limitations set forth in Section 9.1, “Indemnification by Intertech”.
- LIMITATION OF LIABILITY. SUBJECT TO THE LIMITATIONS SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHAT CAUSE OF ACTION (INCLUDING NEGLIGENCE) OR CLAIM FOR RELIEF IS ASSERTED, IN NO EVENT WILL EITHER PARTY OR ITS AGENTS, OFFICERS, DIRECTORS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOST TIME, LOST SAVINGS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITH THE EXCEPTION OF THE AMOUNT THAT CLIENT OWES INTERTECH FOR SERVICES RENDERED, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO INTERTECH EITHER FOR THE 3 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM OR UNDER THE STATEMENT OF WORK UNDER WHICH THE CLAIM AROSE, WHICHEVER IS LESS.
- EXCLUSIVE REMEDIES. Any and all claims arising out of or relating to this Agreement, except for any claim against Client for the amount the Client owes Intertech for Services rendered, will expire unless filed within 1 year after the first date of performance or breach, which in whole or in part gives rise to the claim. These remedies will be determined in accordance with Minnesota law, and are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with this Agreement or for any breach of this Agreement whether brought under a theory of tort liability, contract liability, or any other theory.
12.1. If the Parties have entered into a non-disclosure agreement prior to the Effective Date (a “Separate NDA”), then the Parties agree that such Separate NDA shall be incorporated into this Agreement by reference, and the subsequent Section 12.2 is not a part of this Agreement. To the extent that there is a conflict between that non-disclosure agreement and the other terms of this Agreement, this Agreement shall take precedence. If the Parties have not entered into a Separate NDA as of the Effective Date, then the terms of Section 12.2 shall govern each Party’s confidentiality and non-disclosure obligations.
12.2. If the Parties have not entered a Separate NDA, then the following terms will apply:
- Nondisclosure Obligation.Receiving Party agrees: (a) to hold Confidential Information in confidence and not disclose it to any third party; (b) to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; (c) not to disclose any Confidential Information to any person, firm or business, except to the extent necessary for internal evaluations in connection with matters authorized under this Agreement, and for any other purpose Disclosing Party may authorize in writing.
- Exclusions from Nondisclosure Obligation. The obligations under Section 12.2(a), “Nondisclosure Obligation”, of each of the Parties with respect to any portion of the Confidential Information of the other Party shall not apply to such portion that: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party, through no fault of Receiving Party; (b) was rightfully in the possession of Receiving Party, to the best of Receiving Party’s knowledge, free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party; (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party; (d) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence; or (e) is approved (via written authorization) by Disclosing Party for release by Receiving Party. A disclosure of the Confidential Information of Disclosing Party either: (x) in response to a valid order by a court or other governmental body, (y) as is otherwise required by law, or (z) as necessary to establish the rights of either Party under this Agreement, shall not be considered to be a breach of this Agreement by Receiving Party or a waiver of confidentiality for other purposes. If Receiving Party is required by law to disclose Confidential Information (pursuant to a subpoena, discovery, warrant, or similar legal process), Receiving Party shall, to the extent allowed by law, promptly notify Disclosing Party upon receipt of such demand and reasonably cooperate with Disclosing Party (at the expense of Disclosing Party) in any attempt to quash such legal process or to seek a protective order or other appropriate relief requested by Disclosing Party.
- Ownership and Return of Confidential Information and Other Materials. All Confidential Information of each of the Parties shall remain the property of Disclosing Party, and no license or other rights to such Confidential Information is granted or implied hereby. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists and all other tangible media of expression) furnished by Disclosing Party to Receiving Party, and which are designated in writing to be the property of Disclosing Party, shall remain the property of Disclosing Party. Upon written request of Disclosing Party, Receiving Party shall destroy or return to Disclosing Party all Confidential Information, except that Receiving Party may (i) retain copies of Confidential Information that it is required by law or regulation to retain and (ii) retain copies of Confidential Information in accordance with legal, disaster, data recovery or records retention purposes as part of archival back-up systems maintained by Receiving Party in the ordinary course of business.
- NON-SOLICITATION. During the term of any Statement of Work and for a period of 1 year thereafter, neither Party shall, without the prior written consent of the other Party: (a) directly solicit, induce, recruit, encourage, request, or attempt to influence any employee of the other Party to terminate their employment; or (b) employ, hire, or take away any employee of the other Party, either for itself or for any other person or entity. The foregoing limitation is only applicable to personnel of each Party that are materially involved in the project governed by the applicable Statement of Work. Notwithstanding the foregoing, nothing shall prevent either Party from employing an employee of the other Party who: (x) responds to a general employment advertisement when such solicitation is not specifically directed at that individual; (y) is directed to the other Party by employment search firms where such employment search firms are not directed by the hiring Party to initiate discussions with respect to the prospective employment of that individual; or (z) contacts the other Party on his or her own initiative without any direct or indirect solicitation by the hiring Party.
- TERM. The term of this Agreement will commence on the Effective Date and will remain in force during all times at which there is an active Statement of Work between the Parties. Termination of an individual Statement of Work will not constitute termination of this Agreement.
15.1. Termination for Cause.
- For Material Breach.Either Party may terminate this Agreement in the event of a material breach by the other Party of its obligations under these Terms and Conditions or any applicable Statement of Work, if the Party in breach fails to cure the condition of breach within 10 days after receipt of written notice of breach.
- For Insolvency.This Agreement will terminate automatically, without notice: (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the debt of either Party; (ii) upon either Party making an assignment for the benefit of creditors; or (iii) upon the dissolution of or ceasing to do business by either Party.
- For Anticipatory Infringement. Intertech reserves the right to terminate this Agreement or any Statement of Work with immediate effect at any time if Intertech reasonably believes that the Services and/or Deliverables that are the subject of any applicable Statement of Work could potentially infringe on the intellectual property rights of a third party, and Client has not provided reasonable assurances to the contrary.
15.2. Termination for Convenience. Either Party may terminate this Agreement at any time for its convenience in whole or in part, with or without cause, by giving 60 days written notice to the other Party.
15.3. Effect of Termination. As of the effective date of termination of this Agreement or Statement of Work, Intertech will stop work on the Services and/or Deliverables and Client will be liable for: (a) effort incurred prior to the effective date of such termination; (b) Expenses that have been incurred and that are not cancellable; (c) the time and materials necessary to transfer any Services and/or Deliverables; (d) any costs owed to Intertech pursuant to Section 3 hereof; and (e) any additional charges as mutually agreed in writing to be essential for terminating said Services and/or Deliverables. If Client terminates a Statement of Work pursuant to Section 15.2, Intertech reserves the right, to apply a cancellation fee to account for resources that were reserved for the terminated Statement of Work.
15.4. Survival of Terms. In the event of termination of this Agreement or any Statement of Work, for any reason or upon the expiration of the term of this Agreement, the provisions and obligations of Sections 1, 3 through 5, 7 through 13, 15.4, 20, 23 and the obligation of Client for payment of Services rendered prior to, or on the date of expiration or termination, will survive any such termination, and will be enforceable after termination.
- FORCE MAJEURE. No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. A change in economic circumstances will not be considered a Force Majeure Event. The Impacted Party shall give prompt notice to the other Party, as determined by the scope of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either Party may thereafter terminate this Agreement upon 5 days’ written notice.
- ASSIGNABILITY. This Agreement is binding upon and will inure to the benefit of the Parties, their legal representatives, successors, and assigns. Except as otherwise expressly provided in this Agreement, neither Party may assign, transfer, convey or encumber this Agreement or any rights granted in it, either voluntarily or by operation of law, without the prior written consent of the other Party. Any attempt to do so is null and void. Notwithstanding the foregoing, any successor in interest by merger, operation of law, or purchase of the entire or substantially all of the business or assets of either Party may acquire all interest hereunder, provided such successor is subject to all obligations hereunder.
- NOTICES. All notices and other communications required by this Agreement must be in writing and sent to the Parties at the addresses set forth below via hand delivery or overnight courier service. Notices are effective only: (a) upon receipt; and (b) if the Party giving the notice has complied with the requirements of this Section.
If to Client:
The address set forth in the Client’s most recent Statement of Work, or if none, the Client’s most recent billing address on file with Intertech.
- AFFILIATES. The Parties acknowledge and agree that Statements of Work made under this Agreement may be entered into by an Affiliate of either Party. In the event that an Affiliate of a Party enters into a Statement of Work, such Affiliate shall be subject to all of the respective obligations of the applicable Party under this Agreement, and each Party agrees to be held fully responsible for the performance of this Agreement by its Affiliate.
- GOVERNING LAW. This Agreement will only be governed by and construed in accordance with the laws of Minnesota, except for its conflicts of law rules and principles. The Parties agree that, in the event of any suit or proceeding arising out of or related to this Agreement, the courts of Minnesota will have exclusive jurisdiction and the Parties shall submit to the jurisdiction of such courts.
- NO WAIVER. No failure of either Party to exercise, and no delay in exercising, any right, power, or privilege under this Agreement is a waiver of that right, power, or privilege. Any single or partial exercise of any right under this Agreement does not preclude any other or further exercise of that right or the exercise of any other right. Any waiver of any provision of this Agreement is effective only in the specific instance and for the specific purpose for which the waiver is given.
- RELATIONSHIP OF THE PARTIES. Intertech is an independent contractor. Nothing in this Agreement will be construed as creating any joint venture, partnership, employment or agency relationship between the Parties.
- PUBLICITY. Client expressly consents to Intertech identifying Client to third parties as a client of Intertech, including reproducing and publicizing its trading name, trademarks, and logos, on the corporate website of Intertech and in company presentations. Intertech expressly gives Client its consent to use the name, trademarks, and logos of Intertech, similarly. In addition, Client expressly consent to Intertech describing the Services and Deliverables created pursuant to this Agreement on the corporate website of Intertech, in presentations, and in other marketing materials, so long as Intertech first provides it to Client for review and approval, which approval will not be unreasonable withheld. Each Party retains the right to revoke this consent by providing said request to the other Party in writing.
- APPROVAL. Wherever this Agreement requires either Party’s approval, consent or satisfaction, such approval, consent or satisfaction may not be unreasonably or arbitrarily withheld or delayed.
- HEADINGS. Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement.
- NO THIRD PARTY BENEFICIARY. This Agreement is solely for the benefit of the Parties hereto and does not confer any rights to any other person or business entity as a third party beneficiary or otherwise.
- SEVERABILITY. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective to the extent of such prohibition or unenforceability in that jurisdiction alone. The validity, enforceability, or legality of the remaining provisions will not be affected.
- COUNTERPARTS. Any Statement of Work or other document executed in connection with these Terms and Conditions may be executed in any number of counterparts. Each counterpart is an original and all of which when taken together constitute one and the same instrument. One or more counterparts may be delivered electronically in PDF format; these formats have the same effect as an original executed counterpart.
- ENTIRE AGREEMENT. This Agreement constitutes and expresses the entire agreement and understanding between the Parties superseding any prior communications, understanding, commitments, or agreements, oral or written, with respect to the subject matter hereof. The Parties are not relying on any representations or warranties other than those expressly provided herein. Any changes or modifications to this Agreement must be in writing and signed by an authorized representative of both Parties before taking effect. Notwithstanding the foregoing, each Statement of Work executed pursuant to this Agreement, together with these Terms and Conditions as incorporated therein, will be considered a separate agreement, and no Statement of Work will be deemed to amend or replace any other Statement of Work unless expressly provided therein.