IntelliVOL maintains the x2VOL Product, consisting of the x2VOL Website, the intelliVOL Software and the intelliVOL Services, subject to the terms and conditions described herein. Your use of all or any part of the x2VOL Product constitutes an agreement by you to abide by these terms and conditions (the "Agreement"). If you have entered into this Agreement on behalf of an organization, you represent that you have the authority to bind that organization to this Agreement. If you do not have the necessary authority, or if you do not agree with these terms and conditions, then you may not use the x2VOL Product.
1.1. "Subscriber" means an entity, typically a school, school district or other institution, that has subscribed for the intelliVOL Services. "Subscriber" includes any employees, agents, affiliates, or other representatives such entity.
1.2. "End User" means an individual who has completed the registration process at the x2VOL Website and is granted authorization to access any portion of the intelliVOL Services. Typical End Users are students or Subscriber-Associated End Users.
1.3. "Subscriber-Associated End User(s)" means those End Users authorized by Subscriber to associate themselves with Subscriber for purposes of using the x2VOL Product. Typical Subscriber-Associated End Users include school counselors, students enrolled with Subscriber, and other appropriate End Users.
1.4. "X2VOL Website" means the Internet website operated by intelliVOL at www.x2vol.com and is the website through which Subscriber and End Users access the intelliVOL Services and the x2VOL Product.
1.5. "Restricted Area" means that portion of the x2VOL Website an End User must be registered to access. The x2VOL Services are available in the Restricted Area.
1.6. "intelliVOL Services" means the volunteer management services and other services provided by intelliVOL to Subscriber and End Users during the Term of this Agreement. The intelliVOL Services are limited to the features and functionality available at the x2VOL Website at any time during the Term of this Agreement, those features and functionality being determined at the sole discretion of intelliVOL.
1.7. "X2VOL Product" refers collectively to the x2VOL Website, intelliVOL Software, and intelliVOL Services available at the x2VOL Website.
1.8. "intelliVOL Software" means an Internet-based software application used by intelliVOL to provide the intelliVOL Services. End Users interact with the intelliVOL Software when interacting with the x2VOL Website.
1.9. "End User Information" means information provided by or generated about End Users during interaction with the x2VOL Product. Typical End User Information may include name, contact information, username, password, gender, interests, matching volunteer opportunities, selected volunteer opportunities, performed volunteer opportunities, and other information.
1.10. "intelliVOL Intellectual Property" means any intellectual property both tangible and intangible which is now owned or hereafter acquired by intelliVOL in any manner including without limitation: inventions, whether patentable or not; patents and/or patent applications filed, issued and/or pending in any countries; proprietary information; copyrights in software, documentation, website pages, and other recorded information, whether the copyrights are registered or not; trademarks, service marks and trade names, whether registered or not; and trade secrets including without limitation software, algorithms, methods, advertising strategies and/or plans, marketing information, and any other information known to intelliVOL which is not publicly known and which gives intelliVOL any advantage in its businesses or operations.
2. Provision of Services
2.1. Providing Services. intelliVOL will provide to the Subscriber the intelliVOL Services. Subscriber and intelliVOL agree to cooperate in good faith to achieve provision of the Services. intelliVOL agrees to provide access to the intelliVOL Services (or portion thereof) at the x2VOL Website to allow Subscriber-Associated End Users to access the relevant intelliVOL Services. End Users not associated with a Subscriber are permitted limited access to certain intelliVOL Services at the sole discretion of intelliVOL.
2.2. Access by Subscriber-Associated End Users. Subscriber agrees that it will be responsible for all conduct of any employee or agent of Subscriber that accesses any Restricted Area, whether such conduct has been authorized by Subscriber or not.
2.3. End User Registration. Each End User will be required to register with the intelliVOL Website before being granted access to the Restricted Area, and thereby the intelliVOL Services. During the registration process, each End User will be required to accept intelliVOL's standard terms of service. Failure to accept intelliVOL's standard terms of service will result in a rejected registration for the End User, and the End User will have no access to the Restricted Area, and thereby no access to the intelliVOL Services. intelliVOL shall have no responsibility for an End User's decision to reject intelliVOL's standard terms and conditions or the consequences resulting from that decision, either to the End User or Subscriber.
2.4. intelliVOL will not provide Subscriber or End Users any software, firmware, or hardware for accessing the x2VOL Website beyond what is available at the x2VOL Website. Subscriber and/or the End Users are responsible for obtaining and maintaining the minimum necessary equipment (hardware, firmware, and/or software) for accessing and using the x2VOL Product through the website interface of the x2VOL Website. Typical equipment includes a computer with a browser and an Internet connection.
2.5. Subscriber takes full responsibility for approving/validating any volunteer hours reported by a Subscriber-Associated End User. intelliVOL shall have no responsibility for compliance with any laws or other rules or regulations related to which volunteer hours qualify for school credit or are otherwise approved by the school or appropriate governing entity or authority. Subscriber agrees to comply with all applicable federal, state and municipal statutes, ordinances, laws, rules and regulations governing the schools and/or minors.
2.7. intelliVOL has no responsibility or liability for discrepancies in volunteer hours reported by an End User, confirmation or validation of volunteer hours reported by an End User, an End User's conduct while performing a volunteer opportunity, or an End User's failure to perform a volunteer opportunity.
2.8. intelliVOL has no responsibility or liability for validation of any volunteer organizations offering volunteer opportunities through the x2VOL Product, the behavior of such volunteer organizations, or the quality of the volunteer opportunity.
2.9. intelliVOL has the right to modify the x2VOL Product, including the appearance, operation, and any other features, at any time and at intelliVOL's sole discretion.
3. Subscriber and End User Use of the X2VOL Website
3.1. License Grants to Subscriber and End Users. Subject to the terms of this Agreement and for the Term of this Agreement only, intelliVOL grants to Subscriber and the Subscriber-Associated End Users (solely within the scope of their association with Subscriber), a revocable, world-wide, non-exclusive, non-transferable license, without the right to sublicense, to access and use the x2VOL Product (including the Restricted Area), in executable form only and solely for Subscriber's internal purposes. Subject to the terms of this Agreement, intelliVOL grants to each End User a revocable, world-wide, non-exclusive, non-transferable license, without the right to sublicense, and terminable by intelliVOL at any time in its sole discretion, to access and use only those portions and functionality of the x2VOL Product, in executable form only, that intelliVOL in its sole discretion may permit such End User to access. In no event will Subscriber or any End User obtain any right to use the x2VOL Product, or portion thereof, for purposes of operating a service bureau, acting as an application service provider, providing volunteer management services to third parties, or for any other form of commercial exploitation. All rights not expressly granted to Subscriber or End User are reserved by intelliVOL and its licensors. The x2VOL Product contains intelliVOL Intellectual Property and any unauthorized use of thereof may violate intellectual property laws. Except as expressly set forth herein, Subscriber and End Users do not obtain any rights (by implication, estoppel, waiver, or otherwise) under any intelliVOL Intellectual Property rights. Notwithstanding the foregoing, no End User shall obtain any license rights under this section unless such End User has agreed to be bound by the terms and conditions posted on the intelliVOL Website.
3.3. Usage Limits. Subscriber and End Users agree that neither Subscriber nor any End User obtains any rights to use the x2VOL Product for any purpose other than the intended purpose. intelliVOL reserves the right to revoke the rights of the Subscriber or any End User to view, download, retrieve, access, store, and print information available through the x2VOL Website and Subscriber agrees that it will discontinue or cause to be discontinued the same immediately upon written notice from intelliVOL. Subscriber and End Users may not modify, reproduce, or otherwise use any materials available through the x2VOL Website for any purpose other than for the intended use thereof. Subscriber agrees that it will cease use of and cease attempting to access the Restricted Area of the intelliVOL Website upon termination of this Agreement.
3.4. Proprietary Markings. Subscriber and End Users agree that they will not remove any copyright or other proprietary notices contained in the x2VOL Product or other materials provided by intelliVOL.
3.5. Further Limitations on Use. Subscriber and End Users agree that they shall not, shall not allow or encourage others to, and obtain no rights hereunder to reverse engineer, decompile, translate, disassemble, or otherwise attempt to discover the x2VOL Product (including without limitation the source code), in whole or in part, in any manner whatsoever for any purpose. Subscriber and End Users agree that they will not study the operation of the x2VOL Product in order to develop a competing system or a system that operates with the x2VOL Product, and Subscriber or End User breaching this provision agrees to assign all intellectual property rights in any competing system to intelliVOL.
3.6. Security. Subscriber and End Users shall not take any steps to avoid, study, or defeat the purpose of security measures associated with the x2VOL Product. Subscriber and End Users agree that they will not access data not intended to be accessed by them or log into an account which they are not allowed to access. Subscriber and End Users agree that they will not attempt to interfere with intelliVOL Service to any End User, the x2VOL Product, or any portion thereof including without limitation via means of submitting a virus, overloading, flooding, spamming, mailbombing, crashing, etc. Subscriber and End Users agree not to delete any data associated with the x2VOL Website without authorization. Subscriber and End Users expressly acknowledge that security risks are an inherent risk of doing business on the Internet. In particular, third parties may unlawfully intercept or access private communications of the x2VOL Website or any Subscriber or End User. Although intelliVOL takes measures to secure the x2VOL Product, Subscriber and End Users acknowledge that intelliVOL does not warrant or represent that information communicated to or from the x2VOL Product will be free from tampering, interception, interference, or destruction by third parties.
3.7. Third Party Sites, Promotions and Advertising. During the use of the x2VOL Website, Subscriber or End Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties showing their goods and/or services through the x2VOL Website. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Subscriber or End User and any such third party. intelliVOL does not endorse any sites on the Internet that are linked through the x2VOL Website. intelliVOL is providing these links to Subscriber and End Users only as a matter of convenience. intelliVOL does not control the third party sites and in no event shall intelliVOL or its licensors be responsible for any content, data practices, products, or other materials on or available from such sites.
3.8. Third Party Products and Services. In connection with the intelliVOL Services, Subscriber or End User may register for, purchase, access, or obtain products, services, and/or features to be provided by third parties. The agreements between intelliVOL and such third parties may permit intelliVOL (i) to bill Subscriber or End User for such third party products or services, and/or (ii) deliver such third party products or services to Subscriber or End User. Such third party products or services shall not be considered "intelliVOL Services" for purposes of this Agreement, and the liability of intelliVOL to Subscriber or any End User for or in connection with any such third party products or services shall be limited to the amount of fees paid to intelliVOL by such Subscriber or End User for such third party products or services less any amounts paid by intelliVOL to such third party for such third party product or service.
3.9. Credit Card Processing. intelliVOL engages the services of third-party intermediaries to provide credit card processing services to Subscriber and End Users. Such intermediaries are solely a link in the distribution chain, and are not permitted to store, retain, or use the information provided, except for the sole purpose of credit card processing and as required by law. Before Subscribers and End Users submit credit card information, Subscriber and End Users shall be required to agree to any applicable third party intermediaries' terms of service and privacy policies, including provisions on limited warranties and liability.
3.10. Use of Communication Services. The x2VOL Website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable Subscriber and End Users to communicate with the public at large or with a group (collectively, “Communication Services”). Subscriber and End Users agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, Subscriber and End Users agree that when using a Communication Service, they will not: (i) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (ii) publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; (iii) upload files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless such Subscriber or End User owns or controls the rights thereto or has received all necessary consents; (iv) upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; (v) advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; (vi) conduct or forward surveys, contests, pyramid schemes or chain letters; (vii) download any file posted by another user of a Communication Service that the Subscriber or End User knows, or reasonably should know, cannot be legally distributed in such manner; (viii) falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded; (ix) restrict or inhibit any other user from using and enjoying the Communication Services; (x) violate any code of conduct or other guidelines which may be applicable for any Communication Service; (xi) harvest or otherwise collect information about others, including email addresses, without their consent; (xii) violate any applicable laws or regulations. intelliVOL has no obligation to monitor the Communication Services. However, intelliVOL reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. intelliVOL reserves the right to terminate any Subscriber's or End User's access to any or all of the Communication Services at any time without notice for any reason whatsoever. intelliVOL reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in intelliVOL's sole discretion. Subscribers and End Users must always use caution when giving out any personally identifying information in any Communication Service. intelliVOL does not control or endorse the content, messages or information found in any Communication Service and, therefore, intelliVOL specifically disclaims any liability with regard to the Communication Services and any actions resulting from the participation of Subscriber or any End User in any Communication Service. Managers and hosts are not authorized intelliVOL spokespersons, and their views do not necessarily reflect those of intelliVOL. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. Subscriber and End Users are responsible for adhering to such limitations if they download the materials.
3.11. intelliVOL does not claim ownership of the materials that Subscriber or End Users post, upload, input or submit to the Communication Services (including feedback and suggestions) (collectively, "Submissions"). However, by posting, uploading, inputting, providing or submitting a Submission the Subscriber or End User is granting intelliVOL, its affiliated companies and sublicensees permission to use such Submission in connection with the operation of the x2VOL Website including, without limitation, the rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate or reformat such Submission and to publish the Subscriber's or End User's name in connection with their Submissions. No compensation will be paid with respect to the use of Submissions. intelliVOL is under no obligation to post or use any Submission and may remove any Submission at any time in intelliVOL's sole discretion. By posting, uploading, inputting, providing or submitting a Submission, the Subscriber or End User warrants and represents that it owns or otherwise controls all of the rights to such Submission, as described in this section including, without limitation, all the rights necessary for Subscriber or End User to provide, post, upload, input or submit the Submission.
3.12. Digital Millenium Copyright Act. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. intelliVOL reserves the right to remove any material on the x2VOL Website which allegedly infringes another person's copyright. If you believe in good faith that materials hosted by intelliVOL infringe your copyright, you (or your agent) may send us a notice requesting that the materials be removed, or access to them blocked. Such notice must meet statutory requirements imposed by the DMCA and must be in writing and include the following information in writing: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed. Please describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of your work; (iii) a description of the material that you claim to be infringing, as well as its location within the Service; (iv) your name, address, telephone number, and e-mail address; (v) a statement by you that you have a good faith belief that the disputed use of the materials is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices for the Service should be sent to: intelliVOL, Attn: DMCA, PO BOX 806, Comfort, TX, 78013, (214) 669-2083. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be substantial penalties for false claims.
4. Fees, Taxes, and Invoices
4.1. Fees/Invoices. Subscriber shall pay to intelliVOL or its authorized reseller a Subscription Fee for use of the x2VOL Product to be determined and agreed in writing by Subscriber and intelliVOL or its authorized reseller, as applicable. The Subscription Fee shall be based on maximum enrollment capacity of the Subscriber as of August 31st of each year. Payment terms for Subscribers purchasing the intelliVOL Services through an authorized reseller ("Indirect Subscribers") shall be governed by a written agreement between such Indirect Subscriber and such authorized reseller. For Subscribers paying fees directly to intelliVOL ("Direct Subscribers"), Subscription Fees for services are payable when the invoice is mailed to the Direct Subscriber, and shall be past due if they remain unpaid fifteen (15) days after they become payable. Any amounts past due more than fifteen days will bear interest, which Direct Subscriber agrees to pay to intelliVOL, at a rate of interest equal to the lesser of (i) the prime rate established from time to time by Citibank of New York plus two percent, or (b) the maximum rate of interest allowed by applicable law. Direct Subscriber agrees to pay intelliVOL the Fee at the address provided for intelliVOL under the notices provision herein.
4.2. Taxes. The Subscription Fee payable to intelliVOL is exclusive of any sales or use or other taxes or governmental charges. Subscriber shall be responsible for payment of all such taxes or charges, except for any taxes based solely on intelliVOL's net income.
4.3. Suspension of Service. Should any payments due to intelliVOL under this Agreement fall past due according to the above paragraph, intelliVOL may at its sole option and on written notice to Subscriber at the address provided by Subscriber to intelliVOL at the time of subscription, suspend the use of the intelliVOL Services, including suspending access by Subscriber and/or the Subscriber-Associated End Users, until such time the past due payments are paid and the Subscriber's obligations to make payments are current.
5. Intellectual Property Rights/Ownership
5.1. Title and Ownership. It is expressly agreed that intelliVOL Intellectual Property including all intellectual property rights in the x2VOL Product, all intelliVOL provided documentation, manuals, files website pages, source code, object codes, executable code, databases and the like provided to or otherwise accessed by Subscriber or the End Users under this Agreement shall be and remain the property of intelliVOL during the Term of this Agreement and thereafter. No title transfer to Subscriber or any End User is effected by this Agreement. Subscriber's and End Users' rights to use the x2VOL Product during the Term of this Agreement is limited to the license granted under this Agreement, and the Subscriber and End Users will have no other ownership and/or use rights in the same. Upon termination of this Agreement, all copies of documentation, software, files and other materials such as manuals, and the like provided by intelliVOL to Subscriber under this Agreement are to be returned to intelliVOL at Subscriber's sole expense.
<5.2. Improvements and Modifications. Subscriber and End Users acknowledge that Subscriber or End User may gain a deeper understanding of the x2VOL Product, including the intelliVOL Services, the x2VOL website, and the intelliVOL Software, while this Agreement is in effect. To the extent that End User or Subscriber, its employees, or agents, develops any patentable improvement to the x2VOL Product during the term hereof, End User or Subscriber, as applicable, agrees to assign and hereby does assign all right title and interest in and to such invention to intelliVOL, including without limitation the right to seek patents (and foreign equivalents) thereon. Other than the license expressly granted hereunder, Subscriber and End Users obtain no right or license of any kind (whether implied or by exhaustion) to use the x2VOL Product. Subscriber and End Users agree that all intellectual property rights in any modifications and/or improvements made to the x2VOL Product, which are made by intelliVOL during the Term of this Agreement, even if such improvements or modifications are suggested by End User, Subscriber or its employees or agents or are made at End User's or Subscribers' expense, become and are the sole property of intelliVOL and may be used by intelliVOL for any purpose whatsoever. Subscriber and End Users agree to assign and hereby do assign to intelliVOL their rights in the same. Subscriber and End Users further agree that, if requested in writing by intelliVOL, Subscriber or End User shall cooperate with and assist intelliVOL in perfecting its title and ownership in the improvements and modifications.
5.3. Trademarks and Domain Names. Subscriber and End Users shall not use a trademark, service mark, trade name, Uniform Resource Locator or domain name of intelliVOL or x2VOL without express written consent; except that Subscriber and End Users are hereby authorized by intelliVOL to access the x2VOL Website and to use links and bookmarks on their own systems to enhance access to the x2VOL Website.
6.1. Definition of Subscriber and intelliVOL Confidential Information. For purposes of this Section 6 (Confidentiality), the “Parties” shall mean Subscriber and intelliVOL. Confidential Information of Subscriber means all information provided by Subscriber to intelliVOL in writing, whether provided before or after the date of this Agreement that is marked by Subscriber as confidential. Confidential Information of intelliVOL shall include all information concerning the x2VOL Product, and any information provided in writing, whether provided before or after the date of this Agreement that is marked by intelliVOL as confidential. Confidential Information of either Party shall also include information generated by the Party receiving the information or by its representatives that contains, reflects, or is derived from the furnished information. Notwithstanding the foregoing, Confidential Information shall not include information which (i) is known or becomes known to the receiving Party through no unauthorized act by the receiving Party or by any third party, (ii) is independently developed by the receiving Party without use of either the information provided by the disclosing Party or any information received through an unauthorized act of the receiving Party or any third party, provided that such independent development can be clearly documented and verified by clear and convincing evidence, or (iii) is generally available to the public.
6.2. Duty as to Subscriber and intelliVOL Confidential Information. Each Party agrees that, with respect to the other Party's Confidential Information, it will keep the Confidential Information confidential and that the Confidential Information will not, without the prior written consent of the disclosing Party be disclosed by the receiving Party or by its officers, directors, partners, employees, affiliates, agents, or representatives (collectively “representatives”) in any manner whatsoever, in whole or in part to any third party. The receiving Party also agrees that the Confidential Information shall not be used nor copied by the receiving Party or by its representatives other than in connection with this Agreement and shall not at any time incorporate any or all of the Confidential Information into any other work or product unrelated to this Agreement. The receiving Party of Confidential Information will take commercially reasonable precautions to prevent use or disclosure of the Confidential Information in violation of this Agreement.
7. Ownership/Use of Data
8. Representations and Warranties/Disclaimers
8.1. Representation of Authority. Each Party represents and warrants that it has the right and authority to enter into this Agreement.
8.2. Warranty. Subscriber and End Users acknowledge and understand that the operations of any website and intelliVOL's ability to provide the intelliVOL Services involve functions outside the control of intelliVOL, including third-party software and transmission services that intelliVOL cannot represent or warrant to be uninterrupted or error-free.
8.3. Third Party Intellectual Property Rights. Subscriber and End Users warrant that they will not take any action in their use of any of the x2VOL Product that constitutes an infringement of the intellectual property rights of any third party.
8.4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, intelliVOL MAKES NO WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES WITH RESPECT TO ANY MATTER ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE intelliVOL WEBSITE, THE intelliVOL SERVICES, AND/OR THE intelliVOL SOFTWARE. SUBSCRIBER AND END USERS ACKNOWLEDGE THAT intelliVOL DOES NOT WARRANT THAT ACCESS TO THE intelliVOL WEBSITE WILL BE UNINTERRUPTED, WITHOUT DEFECT AND ERROR, ABSOLUTELY SECURE, AND/OR FREE OF VIRUSES. intelliVOL DOES NOT WARRANT THAT THE X2VOL PRODUCT SHALL MEET ALL OF THE SUBSCRIBER'S REQUIREMENTS, OR THAT THE USE OF THE X2VOL PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, THE X2VOL PRODUCT AND RELATED SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, GUARANTEES, OR CONDITIONS WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION CONCERNING THE OPERATION OF THE X2VOL PRODUCT OR RELATED SERVICES. SUBSCRIBER AND END USERS SHALL BE SOLELY RESPONSIBLE FOR THE CONSEQUENCES OF THEIR USE OF THE X2VOL PRODUCT AND ANY RELATED SERVICES.
8.5. Limitations on Liability and Damages. IN NO EVENT SHALL intelliVOL BE LIABLE TO THE SUBSCRIBER OR END USER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF PROFITS, REVENUE OR DATA, LOST BUSINESS OPPORTUNITIES, INTERRUPTION OF BUSINESS, OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, ARISING OUT OF THIS AGREEMENT AND/OR THE intelliVOL SERVICES, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. intelliVOL'S TOTAL LIABILITY TO SUBSCRIBER OR END USER, IF ANY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY SUBSCRIBER OR END USER HEREUNDER, EVEN IF MULTIPLE CLAIMS ARE MADE.
8.6. THE X2VOL WEBSITE SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND END USERS SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO THEIR SITUATION.
9.1. Indemnity by Subscriber. Subscriber agrees to indemnify, defend, and hold harmless intelliVOL and its subsidiaries, affiliates, officers, directors, partners, employees, and agents from and against any and all third party claims, actions, disputes, and suits, and will pay all resulting losses liabilities, expenses, damages, costs, and expenses, including reasonable attorneys fees, that (a) are attributable to any acts or omissions of Subscriber that result in any intellectual property claim against intelliVOL or its subsidiaries, affiliates, officers, directors, partners, employees, and agents, (b) that arise from any act of any Subscriber-Associated End User or any other employee or agent of Subscriber while using or otherwise accessing the x2VOL Product, or (c) that arise from the breach by the Subscriber of its obligations under this Agreement.
9.2. Procedure. If intelliVOL seeks indemnification under this Agreement, intelliVOL will notify the Subscriber in writing of any such claim, give the Subscriber the opportunity to direct the investigation, defense and settlement of such claim, and cooperate with the Subscriber in defending or settling such claim, provided that intelliVOL shall have the right to approve any settlement in its sole discretion. Notwithstanding the obligations of the Subscriber to defend intelliVOL under the above paragraph, intelliVOL shall also have the right under this provision to be represented by separate counsel of its own choosing at its own expense.
10. Term, Termination and Modification
10.1. Term. For Direct Subscribers, the Initial Term of this Agreement shall be for one year from the effective date of such Direct Subscriber's subscription and shall automatically renew on each yearly anniversary of the effective date for an additional Renewal Term of one year. A Renewal Term shall not become effective in the event that either Party issues notice to the other of its intent not to renew this Agreement within sixty (60) days prior to the yearly anniversary of the effective date. For Indirect Subscribers, the Term of this Agreement shall be the Term agreed by such Subscriber and intelliVOL's authorized reseller. For End Users not associated with a Subscriber, this Agreement shall remain in effect for so long as intelliVOL continues to permit such End User to use the intelliVOL Service.
10.2. Termination. This Agreement may be terminated by either Party upon thirty (30) days' prior written notice if the other Party materially breaches or fails to perform any material term hereof and the breaching Party fails to cure such breach within the 30-day period. A failure to make a payment due under this Agreement is a material breach. The Parties further agree that this Agreement may be terminated by mutual consent of the Parties expressed in writing. The Subscription Fee will not be refunded in the event of termination.
10.3. Survival. Each Party's rights and obligations under Sections 1.1-1.10, 3.2-3.12, 5.1-5.3, 6.1-6.2, 7.1, 8.3-8.5, 9.1-9.2, 11.1, 11.4-11.6, 11.10 and 11.12 shall survive termination or expiration of the Agreement. Upon termination of this Agreement, the license granted to Subscriber and End User herein immediately terminates and Subscriber and End User agrees to immediately cease use of the Restricted Portion of intelliVOL's Website.
10.4. Modification. intelliVOL reserves the right to change the terms and conditions of this Agreement at any time. Such change shall be effective for Subscriber and Subscriber-Associated End Users upon renewal of this Agreement, or earlier if required by law. Renewal of this Agreement after any such changes shall constitute Subscriber's consent to such changes.
11.1. Relationship of the Parties. Subscriber and intelliVOL are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose and neither Party shall have any right, power, or authority to create any obligation or responsibility on behalf of the other Party.
11.2. Force Majeure. Each Party will be excused from performance under this agreement, except for any outstanding payment obligations, for any period and to the extent that it is prevented from performing in whole or in part, as a result of any act of God, earthquake, labor dispute, communication line failures, power failures, or other cause beyond its reasonable control.
11.3. Assignment. Neither Party may assign this Agreement, or any of their respective rights and obligations under this Agreement, without the prior written consent of the other Party, which such consent will not be unreasonably withheld. It is agreed that a merger of Subscriber with another entity, an acquisition of Subscriber by another entity, a consolidation of Subscriber with other entities to form an entity, and any other event which effects a change in control of Subscriber shall be deemed an assignment under this paragraph. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, and their respective successors and permitted assigns. Any attempted or purported assignment without the required consent will be void. Notwithstanding the foregoing, intelliVOL may assign this Agreement to any entity that acquires all or substantially all of intelliVOL's assets and who agrees to be bound by the provisions of this Agreement.
11.4. Choice of Law. THE VALIDITY, CONSTRUCTION, PERFORMANCE, AND ALL MATTERS RELATING TO THE EFFECT OF THIS AGREEMENT AND ANY AMENDMENTS HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES THAT MAY REQUIRE APPLICATION OF THE LAW OF A DIFFERENT JURISDICTION.
11.5. Choice of Forum. THE PARTIES (A) AGREE THAT THE COURTS SITTING IN DALLAS, TEXAS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY ACTIONS ARISING OUT OF OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT AND THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER FORM OF ACTION (“RELATED ACTION”), (B) AGREE TO INITIATE ANY SUCH RELATED ACTION AGAINST THE OTHER PARTY ONLY IN SUCH COURTS, (C) AGREE THAT THEY SHALL NOT RAISE ANY DEFENSE TO THE LAWFUL JURISDICTION OF SUCH COURTS, AND (D) AGREE THAT they SHALL NOT ATTEMPT TO REMOVE ANY ACTION TO ANY OTHER COURT, WHETHER LOCAL, STATE OR FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF ANY OTHER COUNTRY.
11.6. Waivers. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any such right, power or remedy. No waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties. No waiver by either Party of any provision of this Agreement will be construed as a waiver of any other provision of this Agreement, and no such waiver will OPERATE or be construed as a waiver of such provision respecting any future event or circumstance.
11.7. Judicial Modification. Subscriber and End Users agree that if a court of competent jurisdiction determines that the length of time or any other restriction, or portion thereof, set forth in this Agreement is overly restrictive and unenforceable, the court may reduce or modify such restrictions to those which it deems reasonable and enforceable under the circumstances.
11.8. Complete Agreement. This Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof and SUPERSEDES all prior and contemporaneous agreements, negotiations, and understandings between the Parties, both oral and written.
11.9. Severability. If any provision of this Agreement shall be held void, voidable, invalid, or inoperative, no other provision of this Agreement shall be affected as a result thereof, and accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, VOIDABLE, invalid, or inoperative provision had not been contained herein.
11.10. Cumulative Remedies. Except as otherwise provided in this Agreement, all rights and remedies herein or otherwise shall be cumulative and none of them shall limit any other rights or remedies.
11.11. Headings. The headings in this Agreement are for convenience and shall not be used in interpreting this Agreement.
11.12. Notice. Except as otherwise provided in this Agreement with respect to electronic notice, notice required to be given hereunder shall be deemed given if in writing and sent by confirmed facsimile transmission or personally delivered, or actually deposited in the United States mail in registered or certified form (except for invoices which may be sent by regular mail), return receipt requested, postage prepaid, and addressed, if to Subscriber or an End User, at the address or facsimile provided by Subscriber to intelliVOL or intelliVOL's authorized reseller upon subscription for the x2VOL Product or as changed upon written notice to that effect to intelliVOL, if to an End User, to the address, facsimile or email address provided by End User in his or her account on the x2VOL Website, and if to intelliVOL, at the address as set forth below or as changed by intelliVOL upon written notice to that effect to the other Party: