INTRALINKS API ACCESS AGREEMENT
This Intralinks API Access Agreement (the "Agreement") is a legal agreement between the corporation, company or other entity accepting this Agreement ("Developer"), and Intralinks, Inc. ("Intralinks"), stating the terms that govern Developer's use of the Intralinks API and the Intralinks Tools.
BEFORE YOU SELECT THE "CREATE NEW ACCOUNT" OPTION AT THE BOTTOM OF THIS WINDOW, CAREFULLY READ THE TERMS OF THIS LICENSE. BY CHOOSING THE "CREATE NEW ACCOUNT" OPTION YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY AND AUTHORITY TO BIND DEVELOPER TO THE TERMS OF THIS AGREEMENT AND (2) CONSENTING AS AN AUTHORIZED REPRESENTATIVE OF DEVELOPER TO BE BOUND BY THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, OR DO NOT REPRESENT THE FOREGOING, CHOOSE THE "CANCEL" OPTION, IN WHICH CASE DEVELOPER WILL NOT AND MAY NOT RECEIVE, INSTALL OR USE THE INTRALINKS TOOLS OR INTRALINKS API. Any use of the Intralinks Tools or Intralinks API other than pursuant to the terms of this Agreement is a violation of U.S. and international laws and conventions.
This Agreement is effective as of the date when Developer accepts this Agreement by means of an authorized representative of Developer selecting the "CREATE NEW ACCOUNT" option (the "Effective Date").
1.1. "Code" means computer programming code, whether in Object Code form or Source Code form.
1.2. "Confidential Information" means any and all information, whether provided in writing, orally, visually, electronically or by other means, related to the services or business of Intralinks that is designated as 'confidential' by Intralinks, treated as confidential or secret by Intralinks, or the disclosure of which, given the context of communication or the nature of the information, may be reasonably anticipated to be considered confidential or secret by Intralinks or to result in a competitive or other business disadvantage to Intralinks. 'Confidential Information' includes, but is not limited to, the terms of this Agreement; pricing for the Intralinks Products; business, strategic planning, financial, technical, and trade secret information; Code; the Intralinks Tools; customer lists; customer data; other information, written or oral, that is acquired, shared, developed or provided under this Agreement; and information which has been disclosed to Intralinks by a third party and which Intralinks is obligated to treat as confidential or secret.
1.3. "Developer Software" means any Developer software, product or service that contains, uses or was developed using the Intralinks Tools or that interfaces with the Intralinks API, and that either: (a) if Developer is an Intralinks Customer, is used solely for Developer's internal business use within Developer's enterprise (which, for the avoidance of doubt, shall not include the provision of software, products or services by Developer to a third party); or (b) if Developer is an Integrator, is licensed, sold, distributed or otherwise made available directly or indirectly to one or more unaffiliated End Users.
1.4. "Developer Rights" shall have the meaning set forth in Section 4.1.
1.5. "End User" means either: (a) if Developer is an Intralinks Customer, the meaning ascribed to such term in the separate agreement governing Developer's access to the Intralinks Software (or if not defined therein, Developer's employees and representatives who Developer has permitted to access the Intralinks Products and have also agreed to the terms of a EULA with Intralinks); or (b) if Developer is an Integrator, Developer's unaffiliated customers who have purchased, licensed or otherwise acquired Developer Software and have also agreed to the terms of a EULA with Intralinks.
1.6. "EULA" means Intralinks' standard End User Agreement, or (if applicable) another agreement between an End User and Intralinks pursuant to which Intralinks has permitted the End User to access and use the Intralinks Software.
1.7. "Feedback" shall have the meaning set forth in Section 4.3.
1.8. "Integrator" means an entity that uses the Intralinks API in connection with making Developer Software available to unaffiliated third parties.
1.9. "Intellectual Property Right(s)" means all current and future worldwide intellectual property rights, including, without limitation, all Patents, copyrights, trademarks, service marks, mask work rights, Confidential Information, trade secrets and know-how, and applications and registrations for any of the foregoing.
1.10. "Intralinks API" means Intralinks' public-facing Intralinks RESTful API, as made available to Developer pursuant to this Agreement, including any Updates thereto that Intralinks may make available to Developer pursuant to this Agreement.
1.11. "Intralinks Customer" means an entity that is an existing customer of Intralinks for use of the Intralinks Software pursuant to a separate agreement.
1.12. "Intralinks Products" means the Intralinks Software, the Intralinks API and the Intralinks Tools.
1.13. "Intralinks Rights" shall have the meaning set forth in Section 4.2.
1.14. "Intralinks Software" means the Intralinks services that make an End User's exchange or workspace available for access through the Intralinks API, including all Updates to such services, and the associated documentation.
1.15. "Intralinks Tools" means any technical or other specifications, sample Source Code, documentation, tools, libraries, APIs, data, files and other materials made available by Intralinks for use by Developer to enable Developer Software to interact and communicate with the Intralinks Software via the Intralinks API, including any Updates thereto that Intralinks may make available to Developer pursuant to this Agreement.
1.16. "Object Code" means computer program code in binary (machine-readable) format suitable for execution by computer equipment, as generated from Source Code by an assembler, compiler or interpreter.
1.17. "Patents" means all patents, including utility models, extensions, divisionals, continuations, continuations-in-part, reexaminations, reissue and provisional patents as well as patent applications (to the extent rights attach to such applications), worldwide, under which patents (or the applications therefor) a party now has, or hereafter obtains, the right to grant a license or freedom from suit.
1.18. "Permitted Data" means data to be transmitted to and through the Intralinks API, where (a) the data complies with all technical requirements set forth in the applicable specifications and other documentation in the Intralinks Tools, and (b) prior to a transmission of such data, Developer has obtained all necessary third-party consents to permit such transmission (including with respect to Intellectual Property Rights and data privacy rights).
1.19. "Publicly Available Software" means each of (a) any work that contains, or is derived in any manner (in whole or in part) from, any software or portion thereof that is distributed as free software, open source software, or pursuant to similar licensing and distribution models; and (b) any work that requires as a condition of use, modification, and/or distribution of such work that such work or other copyrightable materials (including software) incorporated into, derived from, or distributed with such work (i) be disclosed or distributed in Source Code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no or minimal charge. Publicly Available Software includes, without limitation, software licensed or distributed pursuant to any of the following licenses or distribution models similar to any of the following: (1) GNU General Public License (GPL), Lesser/Library GPL (LGPL) or Affero GPL (AGPL), (2) the Artistic License, (3) the Mozilla Public License, (4) the MIT License, (5) the BSD License, (6) the Common Development and Distribution License (CDDL), and (7) the Apache Software License.
1.20. "Source Code" means computer programming code (and the related source code level system documentation, design specifications, comments and procedural code) which may be printed out or displayed in a form readable and understandable by a programmer of ordinary skill. Source Code also includes the source code management system, product build environment, test system scripts, test harnesses, procedures and automation, and quality control methods and requirements, as applicable.
1.21. "Source Disclosure Obligations" shall have the meaning set forth in Section 7.3.
1.22. "Term" shall have the meaning set forth in Section 9.1.
1.23. "Update" means generally new versions (minor or major), patches, corrections, bug fixes, enhancements and other modifications to the Intralinks Products which are made generally available with or without additional charge to Intralinks' customers during the Term.
2. License Grant
2.1. License to Intralinks Tools. Subject to Developer's compliance with the terms of this Agreement, Intralinks grants Developer a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 10.5 of this Agreement), non-sublicensable right during the Term to install and internally access the Intralinks Tools, in Object Code form only (except for the Source Code for any sample code made available by Intralinks to Developer as part of the Intralinks Tools), for the sole purpose of creating and modifying Developer Software to enable interaction and communication between the Developer Software and the Intralinks Software, via the Intralinks API. Developer will have no right to install or access the Intralinks Tools for any other purpose. If Intralinks supplies Developer with any sample Source Code, and subject to Developer's compliance with the terms of this Agreement, Intralinks grants Developer a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 10.5 of this Agreement), non-sublicensable right to internally access such sample Source Code for the sole purpose of assisting Developer with its modification of the Developer Software in connection with the above license grant.
2.2. License to Intralinks API. Subject to Developer's compliance with the terms of this Agreement, Intralinks grants Developer a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 10.5 of this Agreement), non-sublicensable right to use, access and transmit Permitted Data to and through the Intralinks API for the sole purpose of interaction and communication of Permitted Data between the Developer Software and the Intralinks Software. Developer's use of the Intralinks API pursuant to the foregoing license grant is limited to (a) any Intralinks Software test environment to which Intralinks grants Developer access, and (b) upon Intralinks' delivery of appropriate access credentials to Developer, any Intralinks Software production environment to which Intralinks grants Developer access.
2.3. License Restrictions.
2.3.1. Developer shall only permit access or use of functionality of the Intralinks API in connection with operation of the Developer Software for End Users who have received login credentials from Intralinks. Developer must disclose in writing to each such End User (a) the scope and extent of Developer's use of End User's login credentials and Intralinks Software account, and (b) that Developer, and not Intralinks or any of its suppliers or licensors, assumes any and all liability for any costs or damages resulting from Developer's use of End User's login information and Intralinks Software account, including without limitation any loss or destruction of End User's data. Developer is only permitted to use the Intralinks API to access, retrieve, download, modify or delete any documents or other data when authorized by the applicable End User.
2.3.2. Developer shall not expose the Intralinks Tools or the Intralinks API to any third party, make the Intralinks Tools or the Intralinks API available for use by any third party application, or develop wrappers or extensions for the Intralinks Tools or the Intralinks API. Developer shall not market or distribute any portion of any Developer Software under a trademark, brand or service mark of Developer which competes with Intralinks or which may result in consumer confusion with, or dilution of, Intralinks' trademarks.
2.3.3. Developer shall not permit any employee or representative of any third party which is competitive with Intralinks to use, copy, view or otherwise access in any way the Intralinks Tools, the Intralinks API or Confidential Information.
2.3.4. Intralinks grants no implied licenses under this Agreement, and any rights not expressly granted to Developer hereunder are reserved by Intralinks. Developer shall not make any use of any of Intralinks' Intellectual Property Rights, any Intralinks Product or any Source Code made available by Intralinks except as expressly permitted herein. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, DEVELOPER MAY NOT (AND MAY NOT PERMIT ANY END USER TO) USE THE INTRALINKS PRODUCTS (INCLUDING ANY SOURCE CODE MADE AVAILABLE BY INTRALINKS) FOR COMMERCIAL TIMESHARING, SERVICE BUREAU, OR OUTSOURCING PURPOSES. DEVELOPER SHALL NOT DECOMPILE, DISASSEMBLE, OR IN ANY WAY ATTEMPT TO REVERSE ENGINEER THE INTRALINKS PRODUCTS, OR (EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN) MODIFY OR CREATE DERIVATIVE WORKS OF THE INTRALINKS PRODUCTS OR SOURCE CODE. Developer shall abide by and comply with all technical restrictions and limitations contained in the specifications and documentation made available by Intralinks, including without limitation any limits on rate of transmission of network messages via the Intralinks API.
2.3.5. DEVELOPER ACKNOWLEDGES THAT INTRALINKS MAY MODIFY THIS AGREEMENT AND THE INTRALINKS PRODUCTS AND APPLICABLE RESTRICTIONS AND LIMITATIONS AT ANY TIME IN ITS SOLE DISCRETION. Upon modification to this Agreement, Intralinks will post the revised Agreement to the Intralinks website. Developer is responsible for checking regularly for updates to this Agreement and, by continuing to use the Intralinks Products, shall be deemed to accept any such modifications.
2.3.7. Intralinks reserves the right, for any reason or no reason, at any time to temporarily or permanently suspend or disable (a) Developer's access to the Intralinks Products and (b) the ability of the Developer Software to interact with the Intralinks API.
2.3.8. The Intralinks Products may include the ability to interact and communicate with products and services (including APIs) that are owned or operated by third parties (collectively, "Third Party APIs"). Any such interaction and communication is subject to Developer's compliance with all third party terms applicable to such use in addition to compliance with this Agreement. Third Party APIs are not within the supervision or control of Intralinks. Developer acknowledges that access to any Third Party API may be limited, suspended or terminated, and that the terms of access to any Third Party API may change, in each case at the discretion of the applicable third party.
2.4. License to Data. Developer hereby grants to Intralinks a royalty-free, worldwide, sublicensable, transferable, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, disclose and otherwise exploit any data that Developer or End Users transmit to or through the Intralinks API, in connection with Intralinks' provision of the Intralinks Products and for Intralinks' other business purposes, and Developer represents and warrants that it has obtained all rights and licenses necessary to make such grant to Intralinks.
2.5. Review of Developer Software. Upon request from Intralinks, Developer will provide Intralinks with access to its then-current version of the Developer Software for Intralinks' review. Developer hereby grants to Intralinks a royalty-free, worldwide, sublicensable, transferable, non-exclusive right and license to access and use the Developer Software and related Developer technology for Intralinks' evaluation of such Developer Software and its internal business use purposes. If Intralinks notifies Developer that the Developer Software does not meet Intralinks' quality standards or is otherwise not approved by Intralinks, then Developer shall promptly remedy any failings or disapprovals specified by Intralinks. Developer will promptly provide Intralinks with access to and use of the Developer Software in accordance with this Section 2.5 following any updates, revisions, superseding replacements, patches, and fixes.
2.6. Security Matters. Developer will immediately notify Intralinks of (a) any unauthorized access to the Intralinks Products and (b) any security flaws or deficiencies in the Developer Software that actually or potentially could affect the Intralinks Products.
3. No Product Support. Developer is not entitled to any support for the Intralinks Products or the Developer Software under this Agreement. Any support that Intralinks agrees to provide to Developer shall be subject to the terms of this Agreement as modified by a separate support agreement. Developer is solely responsible for providing all support and technical assistance for the Developer Software to End Users. Developer acknowledges and agrees that Intralinks has no obligation to provide support or technical assistance directly or indirectly to End Users for the Developer Software and Developer shall not represent to any End Users that Intralinks is available to provide such support. For the avoidance of doubt, Intralinks has no obligation to made available any Updates to Developer. If Intralinks does make any Updates available to Developer, the terms of this Agreement will govern such Updates as if such Updates are part of the Intralinks Products, except for Updates accompanied by a separate license (in which case the terms of that license will govern). Developer will promptly update the Developer Software as may be necessary to continue full compatibility with the Intralinks API and the Intralinks Tools, as the same may be updated from time to time by Intralinks.
4.1. Developer Ownership. Developer retains ownership of all right, title and interest to any and all Intellectual Property Rights (including any improvements, enhancements or modifications thereto) in the Developer Software that were previously or independently developed or created by Developer without access to or use of any Intellectual Property Right of Intralinks, and which were not otherwise assigned to Intralinks ("Developer Rights"). Except for the licenses and assignments set forth in this Agreement, nothing in this Agreement grants to or confers in Intralinks any license or right of ownership in the Developer Rights.
4.2. Intralinks Ownership. Intralinks retains ownership of all right, title and interest to any and all Intellectual Property Rights, previously or independently developed or created by Intralinks without access to or use of any Intellectual Property Right of Developer, in the Intralinks Products, Source Code and Intralinks' trademarks, including any improvements, enhancements or modifications thereto made by Intralinks or any third party, but excluding the portions of the Developer Software that are independent of the Intralinks Products ("Intralinks Rights"). To the extent such material is in Developer's possession or control, Developer will take all reasonable and necessary measures to protect the Intralinks Rights, and to the extent Developer obtains any Intellectual Property Rights or other rights in any of the foregoing, Developer hereby assigns all right, title and interest therein and thereto to Intralinks. If so requested by Intralinks, Developer agrees to execute a written assignment of such Intellectual Property Rights to Intralinks and to execute any other documents necessary for Intralinks to establish, preserve or enforce the Intralinks Rights. To the extent that Developer is unavailable, unable or unwilling to execute such documents, Developer hereby appoints Intralinks as its attorney in fact and grants Intralinks the right to execute such documents in its stead. Except for the licenses and assignments set forth in this Agreement, nothing in this Agreement grants to or confers in Developer any license or right of ownership in any of the foregoing. Developer agrees not to remove any trademark, copyright or other proprietary notices in the Intralinks Products.
4.3. Feedback. Developer may from time to time provide suggestions, comments or other feedback to Intralinks with respect to Confidential Information, the Intralinks Products or Source Code ("Feedback"). Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Developer, shall not, absent a separate written agreement, create any confidentiality obligation for Intralinks. Developer will not give Feedback that contains a third party's confidential information or that is subject to license terms that seek to require any Intralinks software, Source Code, technology, service or documentation incorporating or derived from such Feedback, or any Intralinks Intellectual Property Right, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise expressly provided herein, Intralinks shall be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind.
5.1. Confidential Information. Intralinks may elect in its sole discretion to disclose Confidential Information under its control to Developer during the performance of this Agreement. Developer agrees that it shall use Intralinks' Confidential Information solely for purposes of performing its obligations under the Agreement and to take reasonable steps, which shall include, at a minimum, the steps Developer takes to protect its own Confidential Information, to prevent the duplication or disclosure of Intralinks' Confidential Information, other than by or to Developer's employees who must have access to the Confidential Information to perform such party's obligations hereunder, who shall each agree to be bound by similar confidentiality obligations. Developer agrees that if it is required by law, regulation or order of any governmental body or regulatory authority to disclose Intralinks' Confidential Information, Developer must first give written notice of such required disclosure to Intralinks, make all reasonable efforts to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow Intralinks to participate in the proceeding. These obligations shall survive termination or expiration of this Agreement. The obligations of this Section 5.1 shall not apply to information (a) already lawfully known to or independently developed by Developer without access to the Confidential Information of Intralinks as evidenced by Developer's contemporaneous written records, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party without any obligation of confidentiality.
5.2. Return of Confidential Information. Upon termination of this Agreement, or upon Intralinks' request, Developer shall promptly return or destroy and remove from all computers, hard drives, networks and other storage media, all copies and manifestations of Confidential Information of Intralinks and so certify to Intralinks in writing.
5.3. Confidentiality of Agreement. Developer may disclose the existence of this Agreement, but agrees that the terms of this Agreement will be treated as Intralinks' Confidential Information; provided, however, that Developer may disclose the terms of this Agreement only: (i) as required by law, including (to the extent required by law) as part of filings with any court or governmental entities, including without limitation the IRS and SEC, or with national securities exchanges; (ii) to legal counsel of Developer; (iii) under the terms of a non-disclosure agreement to accountants, banks, and financing sources and their advisors; (iv) in connection with the enforcement of this Agreement or rights under this Agreement; or (v) in connection with an actual or proposed merger, acquisition, or similar transaction with an acquiror that would be permitted under Section 10.5.
6. Limited Liability
6.1. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, INTRALINKS SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND RELIANCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, EVEN IF INTRALINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL INTRALINKS' TOTAL LIABILITY TO DEVELOPER OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER EXCEED THE GREATER OF USD $20 OR THE TOTAL AMOUNTS ACTUALLY PAID BY DEVELOPER TO INTRALINKS FOR USE OF THE INTRALINKS API UNDER THIS AGREEMENT.
6.2. THE LIMITATIONS OF THIS SECTION 6 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN AND EVEN IF EITHER OR BOTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF APPLICABLE LAW RESTRICTS THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THEN THE FOREGOING PROVISIONS SHALL BE DEEMED TO EXCLUDE AND LIMIT INTRALINKS' LIABILITY FOR ANY SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7.1. Authority and Validity. Developer represents and warrants that: (i) it is a corporation or other entity duly organized and validly existing under the laws of the jurisdiction above stated, with full power and authority to carry on its business as now conducted and to enter into and carry out the terms of this Agreement; (ii) it has obtained all necessary corporate and other authorizations and approvals required for the execution and delivery of this Agreement; (iii) this Agreement constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms, subject to the laws of bankruptcy and laws of general applicability relating to or affecting enforcement of creditors' rights, and judicial discretion in the application of principles of equity; and (iv) the execution, delivery and performance of this Agreement shall not conflict with or result in a breach of any other agreement to which it is a party or breach of any third party right.
7.2. Employees and Contractors. Developer represents and warrants that it has obtained and shall obtain nondisclosure, assignment of rights and other appropriate agreements with its employees and contractors sufficient to protect the Confidential Information, and sufficient to allow Developer to provide Intralinks with the assignments, rights and licenses provided for herein, such agreements to contain terms no less protective than the terms set forth in this Agreement.
7.3. Publicly Available Software. As used herein, "Source Disclosure Obligations" means requirements to either (a) distribute or make available Source Code as well as Object Code of software to licensees without charge (except for the cost of the medium or other fees that may be charged under the relevant license) or (b) permit licensees to modify software and redistribute both the modified and unmodified versions of software. Developer warrants and represents that, unless Developer has obtained Intralinks' express prior written consent, (i) the Developer Software do not and shall not include any Publicly Available Software in a manner that may subject the Developer Software or the Intralinks Products, in whole or in part, to any Source Disclosure Obligations; (ii) Developer has not used and shall not use Publicly Available Software in whole or in part in the development of any part of the Developer Software in a manner that may subject the Developer Software or the Intralinks Products, in whole or in part, to any Source Disclosure Obligations; and (iii) Developer is not now obligated to make the Source Code of the Developer Software or the Intralinks Products, nor shall Developer allow the Source Code of the Developer Software or the Intralinks Products to be made, generally available to the public.
7.4. Disclaimer of Warranties. THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS) ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' WITHOUT WARRANTY OF ANY KIND, AND DEVELOPER ACKNOWLEDGES THAT INTRALINKS MAKES NO WARRANTIES WITH RESPECT THERETO. INTRALINKS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS), INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, INTRALINKS DISCLAIMS ANY WARRANTY THAT DEVELOPER'S USE OF THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS) WILL MEET ANY OR ALL OF DEVELOPER'S REQUIREMENTS, THAT SUCH USE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE OR THAT THE INTRALINKS PRODUCTS (AND ANY ACCESS TO THIRD PARTY APIS) WILL ALWAYS BE COMPATIBLE WITH DEVELOPER SOFTWARE.
8. Indemnification. Developer agrees to indemnify, defend and hold harmless Intralinks, its affiliates, and their respective officers, directors, representatives, agents, employees, licensors, distribution channels, customers and end users against any and all losses, liabilities, damages and penalties, and all related costs and expenses (including reasonable attorneys' fees) arising from (i) claims of infringement or misappropriation of any Intellectual Property Right in connection with any Developer Software; (ii) claims made in connection with the acts or omissions of Developer, or its employees or representatives, not in accordance with this Agreement or the licenses granted in this Agreement; (iii) claims based on or relating to Developer Software; and (iv) claims based on or relating to Developer's or Developer's End Users' use of the Intralinks Products, except to the extent that such claims relate solely to the Intralinks Products standing alone.
9. Term and Termination
9.1. Term. This Agreement shall commence on the Effective Date and shall remain in effect until terminated pursuant to this Section 9 (the "Term").
9.2. Termination. Either party may terminate this Agreement at any time, for any reason or no reason, upon notice to the other party. This Agreement shall automatically terminate without notice upon a breach of this Agreement by Developer.
9.3. Effects of Termination. Any termination of this Agreement shall also terminate the licenses granted by Intralinks hereunder. Upon termination of this Agreement for any reason, Developer shall promptly perform the actions set forth in Section 5.2 and shall additionally immediately cease using, and either return to Intralinks, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the Intralinks Tools in Developer's possession, and shall certify to Intralinks that such actions have occurred.
9.4. Survival. Sections 1, 2.4, 2.5, 2.6, and 4-10 of this Agreement and any remedies for breach of this Agreement shall survive termination or expiration of this Agreement.
10.1. Government Software. The Intralinks Products are 'commercial items,' as that term is defined in 48 C.F.R. 2.101 (Jan. 2001), consisting of 'commercial computer software' and 'commercial computer software documentation,' as such terms are used in 48 C.F.R. 12.212 (Nov. 2007). Notwithstanding anything to the contrary in this Agreement, Developer shall not license, sell, transfer or distribute any portion of the Intralinks Products to any federal, state, county or local government if such license, sale, transfer or distribution would require Intralinks to comply with any federal, state, county or local government procurement or similar laws, rules or regulations unless Intralinks consents in writing to such license, sale, transfer or distribution. In the event that Intralinks consents in writing to such license, sale, transfer or distribution, all U.S. Government Developers and End Users acquire the Intralinks Products with only those rights set forth herein.
10.2. Export Control. Developer shall comply with all laws, rules and regulations applicable to it or its use of the Intralinks Products hereunder. Technical information and other materials that may be made available by Intralinks to Developer in connection with the services may be subject to export and import laws and regulations of the United States and other jurisdictions. Developer shall not export, re-export, divert, transfer, or disclose, directly or indirectly, any such technical information or other materials to any country, or to any foreign national, without first obtaining any authorization necessary from the U.S. Commerce Department, Office of Foreign Assets Control and any relevant local governmental authority. Developer shall comply with all applicable export and import control laws, rules and regulations, including any required reporting and recordkeeping requirements, and represents that it and its personnel are not named on any U.S. government denied-party list. Without limiting the foregoing, Developer shall not transfer any Intralinks technical information or other materials to countries listed in Country Group E to Supplement No. 1 of 15 CFR part 740, or foreign nationals thereof, or make the Intralinks Products available to such countries or foreign nationals, without the prior written authorization of Intralinks. Developer shall obtain prior written authorization from Intralinks before transferring, or permitting the transfer of, technical information or other materials to any non-U.S. entity headquartered outside of the countries listed in Supplement No. 3 to 15 CFR part 740.
10.3. Publicity and Press Releases. Neither party may issue a press release or similar public announcement of any kind regarding the parties' relationship established hereunder, use publicly the other party's name or refer to the other party in any way in or with the media, including, but not limited to, in advertising, without the prior written approval of the other party. A violation of this provision shall constitute a material breach of this Agreement.
10.4. Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, representative or agent of the other. Neither party has any authority to act on behalf of or to enter into any contract, incur any liability or make any representation or warranty on behalf of the other party. Neither Developer nor Developer's personnel shall be deemed to be Intralinks' employees, and as such shall not by reason of this Agreement or by reason of services to Intralinks be entitled to participate in or to receive any benefit or right under any of Intralinks' employee benefit or welfare plans. Developer shall be solely responsible for, and shall indemnify and hold Intralinks harmless against, the payment of compensation to Developer's personnel; the payment of employment benefits (if any), workers' compensation, disability benefits and unemployment insurance; and the withholding and remitting of any local, state or federal payroll or payroll-related taxes and any tax imposed pursuant to a state or local unemployment tax act or similar statute or income-based taxes or assessments (including all related interest and penalties) related to Developer's personnel.
10.5. Assignment; Change of Control. Developer may not assign its rights or delegate its obligations under this Agreement without Intralinks' prior written consent, and any assignment without such consent shall be null and void. Subject to the foregoing sentence, this Agreement shall be binding upon and inure to the benefit of the parties, its successors and assigns. Developer shall notify Intralinks at least ten (10) days prior to any sale or change of control of a majority of Developer's securities, business or assets (whether in one or a series of related transactions), and Intralinks may terminate this Agreement immediately effective upon such sale or change of control. Intralinks may assign this Agreement to a third party without restriction.
10.6. No Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
10.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom. Neither party relied on any promises or representations, written or oral, of the other party in forming this Agreement, except for those expressly contained herein.
10.8. Amendments and Waivers. No changes or modifications to this Agreement or waivers of any provision of this Agreement shall be effective unless evidenced in a writing referencing this Agreement and signed for and on behalf of both parties.
10.9. Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
10.10. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing delivered (a) if to Intralinks, to Intralinks, Inc., located at 150 East 42nd Street, New York, New York 10017, Attn: General Counsel, and (b) if to Developer, to the mailing address or email address specified in Developer's Intralinks API access registration information. Any such notice shall be deemed to have been delivered and given for all purposes either (i) on the delivery date if sent by email to Developer or if delivered personally to the party to whom the same is directed; (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt, (iii) three (3) calendar days after being mailed by certified mail, postage prepaid, return receipt requested, or (iv) if to Developer, upon delivery if sent by email.
10.11. Equitable Relief. Developer acknowledges that any breach of this Agreement would cause irreparable injury to Intralinks for which monetary damages may not be an adequate remedy. Accordingly, in addition to other available remedies, Intralinks shall be entitled to obtain appropriate injunctive relief and other equitable remedies without the posting of any bond or proving of any harm in the event of an actual or threatened breach.
10.12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the United States of America without regard to the conflicts of laws provisions thereof. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from this Agreement. All actions arising out of or in connection with this Agreement shall be brought in the state or federal courts residing in New York City, New York, United States of America, and both parties hereby irrevocably consent to the exclusive jurisdiction of such courts and waive any objections as to venue or inconvenience of forum. Intralinks may seek injunctive relief and other equitable remedies in any court with jurisdiction over the parties.
10.13. English Language. The parties acknowledge that they require that this Agreement be drawn up in the English language only. Les parties reconnaissent qu'elles ont exigé que la présente convention soit rédigée en langue anglaise seulement. The English language version of this Agreement shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.