Master License Agreement
THIS MASTER LICENSE AGREEMENT (“Agreement”) is entered into by and between Inversoft Inc., a Colorado corporation (“Company”), and you (either an individual or single legal entity) (“Licensee”) to permit Licensee to use Company’s software product in object code form (“Software”) and related documentation (“Documentation”) (the Software and Documentation are referred to collectively as the “Product”). An amendment or addendum to this Agreement may accompany the Software. The Licensee agrees to be bound by the terms of this Agreement by executing an Order Form or by installing, copying, downloading or otherwise using the Product.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE Product.
“Customer Data” means any data, content, works, and information provided or delivered by Licensee to Company. Notwithstanding the foregoing, Customer Data shall not mean any data, content, works, or information provided by Licensee or its representatives or any user to the extent that such information has been anonymized or aggregated by Company or its representatives such that it does not identify any particular individual or entity, and Company shall own all rights to such deidentified data, content, works, and information.
- “Enhancement” means any modification or addition to the Software that materially changes its utility, efficiency, function capability or application, but that does not solely consist of an Error Correction. Company may designate Enhancements as minor or major.
- “Error” means any reproducible failure of the Software to conform in any material respect with the Documentation.
- “Error Correction” means either a bug fix, work-around, patch, or other modification or addition that corrects an Error or a procedure or routine that avoids the practical adverse effect of an Error.
- “Fees” means all fees and expenses payable by the Licensee to Company in acquiring the Software and as applicable any support services, professional services, or Hosted Services.
- “Hosted Services” means, if applicable, Company’s hosting of the Software for the benefit of Licensee.
- “Operating Environment” means the computer software, hardware, systems and networks through which or on which the Software will be installed and run by Licensee. Current minimum server requirements for the Software are set forth in the Product Documentation.
- “Priority A Error” means an Error which renders Software inoperative or causes a complete failure of the Software.
- “Priority B Error” means an Error which substantially degrades the performance of Software or materially restricts Licensee’s use of the Software.
- “Priority C Error” means an Error which causes only a minor impact on the Licensee’s use of Software.
- “Software” means, as set forth in the Order Form, one or more of the following, CleanSpeak™, as defined in Documentation together with any Updates or Enhancements thereto.
- “Support Services” means Company support services as described in Section 5 of this Support Exhibit.
- “Technical Support” means technical support assistance provided by Company by telephone, through email, or through any other online communication mechanism to the Technical Support Contact concerning the installation and use of the then-current release of Software.
- “Technical Support Contact” means the person(s) designated by Licensee below (or as otherwise identified by Licensee) as responsible for communications with Company regarding Support Services hereunder.
- “Update” means any new version of the Software, which may include Error Corrections, Enhancements or both, issued by Company from time to time to its licensees.
2. License and Restrictions
Subject to Licensee’s payment of the Fees and other terms and conditions of this Agreement, Company grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, license to install, execute, display and otherwise use the Product for Licensee’s internal business purposes for the number of users and/or deployments for which it has paid under the Order Form. The license includes the right to use the Software only on equipment owned or operated by Licensee unless Company otherwise agrees in writing. The license also includes the right of Licensee to make the number of copies of the Software reasonably required for authorized use under this Agreement, provided that Licensee maintain on all such copies all proprietary rights notices of the Software. Licensee shall not permit any affiliated entities or third parties to use, directly-access, copy, download, or install the Software for their own use. The Licensee hereby accepts the grant of such license and agrees to be bound by all conditions of this Agreement. The Software provided pursuant to this Agreement is NOT custom software specifically designed for Licensee or to meet any specific Licensee systems, applications or user functions. Company makes no representation to the Licensee that the Software will interface or otherwise function with Licensee’s operating system or any third-party systems or software utilized by Licensee.
3. Proprietary Rights
Licensee acknowledges and agrees that the Product contains proprietary and trade secret information of Company. Other than the limited license granted to Licensee under Section 2 of this Agreement, Company retains all ownership and proprietary rights in and to the Product, including any and all copies made by Licensee and any and all Updates or Enhancements or derivatives thereto. Company also owns all rights in and to any support services, Hosted Services, and any work product or deliverables from any professional services. Licensee will have no right and will not, nor will it authorize or assist others to: (a) copy the Documentation, (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Software or otherwise discern the source code of the Software except and solely to the extent permitted under applicable law notwithstanding this restriction, or (c) use the Software on a service bureau or time-sharing basis or to provide services to third parties unless as otherwise specified in separate written materials provided by Company to the Licensee, (d) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Product or any of Licensee’s rights therein, except such copying and transfer as expressly permitted in Section 2 of this Agreement; or (e) use the Product to create or develop any competing product or service.
3.2 Customer Data
Licensee hereby grants to Company a non-exclusive, non-transferable, non-assignable, sublicensable, right and license to use the Customer Data solely for the limited purpose of, and solely as necessary for, performing Company’s obligations hereunder. Licensee shall own all Customer Data.
4. Pricing, Payment and Audit
Licensee shall pay the Fees for the Product, as well as any support fees, professional services fees, or hosted services fees, in U.S. dollars. Fees for the Product are due and payable prior to delivery of the Product. The Fees are exclusive of any and all taxes, and Licensee is responsible for payment of such taxes (excluding those based onCompany’s net income). Licensee agrees to hold harmless Company from all claims and liability arising from Licensee’s failure to report or pay such taxes. If Licensee exceeds any usage or deployment limitations, Licensee shall be responsible for all excess fees. Any unpaid portion of any Fees, or other fee, payable by Licensee to Company under this Agreement, as of the date of expiration or termination, shall be immediately due and payable upon its expiration or termination for any reason. Past due amounts shall be subject to a monthly service charge of one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. Licensee shall be responsible for Company’s costs of collecting any delinquent amounts, including without limitation any attorney’s fees.
Upon thirty (30) days written prior notice Company will have the right to have an independent audit firm inspect Licensee’s records relating to Customer’s use of the Software, Product and services solely in order to verify Licensee’s compliance with the terms and conditions of this Agreement. The audit will be performed during Licensee’s normal business hours. The costs of the audit will be paid by Company, unless the audit reveals that Licensee has (a) failed to comply with the terms and conditions of this Agreement, or (b) underpaid the amounts owed to Company by five percent (5%) or more, in which case Licensee will reimburse Company for all reasonable out-of-pocket costs and expenses reasonably incurred by Company in connection with such audit. Licensee will promptly pay to Company any amounts shown by any such audit to be owing and due.
5. Other Services
5.1 Support Services
This Agreement does not include support, or any configuration or customization of the Software to Licensee’s system and specifications or any other services. Any support services provided by Company will be described in Exhibit A, and may be subject to the payment of additional Fees.
5.2 Professional Services
The Company does not provide any professional services, including installation services, unless as otherwise set forth in Exhibit B. Any professional services provided by Company will be described in Exhibit B, and may be subject to the payment of additional Fees.
5.3 Hosting Services
If the Licensee is receiving support services under Exhibit A and Company additionally wishes to receive Hosted Services, Licensee will pay the fees for Hosted Services set forth on Exhibit C. Any Hosted Services provided by Company will be described in Exhibit C, and may be subject to the payment of additional Fees.
6. Limited Warranties; Disclaimer of Warranties
6.1 Warranty Period
Company warrants that the Software will perform substantially in accordance with the Documentation for a period of 60 days from the date of delivery of the Software to Licensee (the “Warranty Period”). Company warrants that (a) it will perform the Hosted Services and support services in a professional and competent manner in accordance with industry standards. Licensee’s sole and exclusive remedy, and Company’s sole and exclusive obligation, for breach of this warranty shall be to notify Company within the Warranty Period, detailing the nonconformance, and to provide Company with a reasonable opportunity to correct or replace the defective Software, or, if applicable reperform the applicable Hosted Services or support services. If Company fails to remedy such breach within a reasonable time period after receipt of Licensee’s notice, Licensee shall be entitled to terminate this Agreement (including the license) and obtain a refund of any pre-paid Fees paid to Company. This limited warranty shall be void if Company determines that the Product has been used other than in accordance with the Documentation, abused, modified, altered or otherwise subjected to damage from accident or acts of nature. Licensee agrees to comply with Company’s reasonable instructions with respect to the alleged defective Product, which may include return of the defective Product at Company’s expense.
6.2 Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE PRODUCT AND ANY RELATED SUPPORT OR PROFESSIONAL SERVICES OR HOSTED SERVICES ARE PROVIDED BY COMPANY TO LICENSEE “AS IS,” AND COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PRODUCT OR ANY SERVICES PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW. COMPANY DOES NOT WARRANT THAT THE PRODUCT OR ANY SERVICES PROVIDED HEREUNDER (INCLUDING ANY HOSTED SERVICES, SUPPORT SERVICES, OR PROFESSIONAL SERVICES) WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. LICENSEE WILL BEAR ALL RISKS RELATING TO THE QUALITY AND PERFORMANCE OF THE PRODUCT, AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
6.3 Licensee Responsibility
Licensee is solely responsible for proper configuration of all hardware and other equipment and all databases and other software used with the Software.
7. Intellectual Property Indemnity
7.1. Indemnification by Licensee
Licensee agrees to defend, indemnify, and hold harmless Company from and against the violation of any applicable laws, rules, or regulations by Licensee or any of its agents, officers, directors, or employees.
7.2. Indemnification by Company
Company will defend Licensee from any claim or action brought or made by a third party against Licensee based upon any allegation that the Product infringes any valid United States copyright, patent or trade secret (“Claim”), and will pay any settlements agreed to by Company or judgments finally awarded against Licensee in favor of the third party resulting from such Claim, provided that Licensee: (a) promptly notifies Company in writing of any such claim; (b) gives Company full authority and control of the settlement and defense of the claim; and (c) fully cooperates with Company in the defense of such claims, including providing adequate assistance and information at Company’s expense.
7.3. Modifications and Improper Use
Company will have no obligation to Licensee for any Claim that arises from: (a) any modification to the Product by anyone other than Company; (b) modifications made by Company at Licensee’s request; (c) use of the Product other than as specified in this Agreement or in the applicable Documentation; (d) use of prior versions of the Product after an Update has been provided by Company to Licensee; or (e) use of the Product in combination with third-party software, hardware or data.
If a Claim arises, or in Company’s opinion is likely to arise, Company may at its own expense obtain for Licensee the right to continue using the Product, modify the Product to make it non-infringing, or substitute other Product of similar capability and functionality. If none of these options are reasonably available to Company, Company may terminate this Agreement and refund to Licensee any pre-paid fees. SECTIONS 7.2 - 7.4 STATE THE ENTIRE OBLIGATION OF COMPANY AND THE EXCLUSIVE REMEDIES OF LICENSEE WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS.
8. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each party’s entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, shall in no event exceed an amount equal to the Fees paid by Licensee. The foregoing limitations of liability shall not apply to liabilities arising out of (a) a party’s indemnification obligations under Section 7 (“Indemnification”), (b) a party’s breach of Section 9 (“Confidentiality”), or (c) Licensee’s use of Company’s intellectual property beyond the scope of the license expressly granted in this Agreement.
9. Confidential Information
Each party agrees to keep confidential and to use only for purposes of performing or as otherwise permitted under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or which would reasonably be considered of a confidential nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party without restriction at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed. Notwithstanding any of the foregoing, Licensee acknowledges and agrees that the Product shall be deemed to constitute confidential information of Company. Each party agrees to maintain all Confidential Information of the other party in confidence to the same extent that it protects its own similar Confidential Information and to use such Confidential Information of the other party only for the purpose of exercising its rights and performing its obligations hereunder. Each party agrees to take reasonable precautions to prevent any unauthorized disclosure or use of confidential information of the other party, including, without limitation, by disclosing such confidential information only to its employees or agents (a) with a need to know such information, (b) who are parties to appropriate agreements or confidentiality obligations sufficient to comply with this Section, and (c) who are informed of the nondisclosure/non-use obligations imposed by this Section, and the receiving party will take appropriate steps to implement and enforce such non-disclosure/non-use obligations. Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.
10. Term and Termination
10.1 Term and Termination
This Agreement shall become effective on the last date executed by either party (the “Effective Date”) and shall continue in effect for one year or until otherwise terminated as provided herein. This Agreement shall be automatically renewed each year for an additional 1-year term unless either party provides the other party written notice of its intention not to renew in writing at least ninety (90) days before the end of the then-current term. Either party may terminate this Agreement by giving the other party written notice of such termination upon the other party’s breach of any material term (subject to the breaching party’s right to cure within 15 days after receipt of such notice), the other party’s insolvency, making an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings by or against the other party.
10.2 Effect of Termination
Upon termination of this Agreement, the license granted to Licensee under this Agreement will terminate and Licensee will cease all use of the Product. Within ten (10) business days of termination, Licensee will destroy or deliver to Company all copies of the Product or any portion thereof in Licensee’s possession or under its control (including any Company Confidential Information), and an officer of Licensee will certify to Company such destruction or delivery. Licensee’s failure to comply with the obligations of this Section will constitute unauthorized use of the Product, entitling Company to equitable relief as provided in this Agreement and other legal and equitable remedies. Sections 4, 7, 8, 9, 10.2, 12, 13, 14 and 15 shall survive any expiration or termination of this Agreement.
11. Force Majeure
Except for payment obligations, neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible.
12. System Installation and Tampering
12.1 Licensee Responsibility
Except to the extent necessary for Company to provide the Hosted Services, it is the responsibility of the Licensee to provide the operating system and any other equipment required to operate the Software. Licensee shall be solely responsible for installation of the Software, data conversion, data entry and verification of data. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY FAILURE OF THE SOFTWARE BASED ON THE LICENSEE’S ACTUAL OPERATING SYSTEMS AND THIRD PARTY SOFTWARE INCLUDING, BUT NOT LIMITED TO, VIRTUAL MACHINES, LIBRARIES AND/OR HARDWARE.
12.2 System Tampering
Under no circumstances shall the Licensee or its employees, or third parties exercising Licensee’s rights on Licensee’s behalf, modify, decompile, disassemble or otherwise reverse engineer the Software. The Licensee shall be responsible for any breaches or violations of this Agreement by its employees or other such third parties. If the Licensee notifies the Company of an error or malfunction in the Software which, after investigation by the Company, is determined to have been caused by any unauthorized modifications, this License is voidable at the option of the Company and voids any warranties, expressed or implied, thereto. At a minimum, however, the Licensee shall reimburse the Company, at its then current rates, for all costs incurred by the Company in investigating and correcting such error or malfunction.
The Company may use Licensee’s name, trademark, logo (or other ancillary material provided to it by Licensee) for advertising purposes directly related to CleanSpeak without Licensee’s prior written approval. The Company will not to use Licensee’s name, trademark, logo or other ancillary material in any manner which may harm the business or reputation of Licensee.
14. Third Party Software
Licensee acknowledges that the Software may contain or be accompanied by certain third party software products (“Third Party Components”). THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Third Party Components may be accompanied by certain notices or license documentation relating to such Third Party Components (collectively, the “Third Party Notices”). Licensee shall comply with the terms of all Third Party Notices governing Licensee’s use of such Third Party Components.
This Agreement constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing signed by an authorized representative of each party. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado exclusive of its conflict of laws principles that would require application of the laws of a different jurisdiction. Any dispute arising under or relating to this Agreement will be resolved in the state or federal courts in Denver, Colorado, and the parties hereby expressly consent to jurisdiction therein. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any suit or proceeding arising out of or related to this Agreement. Notices under this Agreement shall be in writing, addressed to the party at its address below, and shall be deemed given when delivered personally, or by facsimile (with confirmation of receipt), conventional mail (registered or certified, postage prepaid with return receipt requested) or overnight courier. Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect. Licensee may not delegate, assign or transfer this Agreement, or any of its rights and obligations under this Agreement, and any attempt to do so shall be void. Nothing in this Agreement shall be construed to limit or delay Company’s ability to seek immediate relief at law or in equity for any breach by Licensee of the license. No waiver of any rights hereunder shall be deemed to be a waiver of the same or other right on any other occasion.
Exhibit A - Support Services
This Support Services exhibit (“Support Exhibit”) by and between Company and Licensee is hereby incorporated into the Master License Agreement (the “License Agreement”). All terms not otherwise defined in this Support Exhibit have the meanings provided in the License Agreement. The terms and condition in this exhibit only apply if Licensee has purchased support services.
Unless defined otherwise herein, capitalized terms used in this Support Exhibit shall have the same meaning as set forth in the License Agreement.
2. Support Services
Support Services consist of (a) Error Corrections and Technical Support provided to the Technical Support Contact regarding the installation and use of the Software, and (b) periodic delivery of Updates when Company makes such Updates commercially available to its licensees. Telephone, E-mail, Verbal and Internet-based support shall only be available during Company’s regular business hours in Colorado. Such support will be given (a) to answer routine questions regarding the use of the Software; (b) to assist Licensee in identifying and reporting Errors which may need corrections; (c) to assist Licensee in identifying and reporting new features and functional improvements that may warrant the development of an Update or Enhancement; and (d) to provide work-around solutions when reasonably available. Support Services cover only, and Licensee is responsible for obtaining at its expense, Operating Environments designated by Company in the Documentation. If additional implementation services are required due to any incompatibility between Licensee’s Operating Environment and the Software and if Licensee requests Company to perform other services and Company agrees to provide such additional services (“Additional Services”), these shall be provided by Company under Exhibit B. At Licensee’s request, Company will provide a written quote for rates or fees for specific Additional Services. Company will not be responsible for providing Support Services for any version of the Software other than the then-most recent release of the Software, except that Company will provide Licensee with Support Services for a reasonable period of time to allow Licensee to implement the most recent Update, not to exceed 6 months. Licensee agrees to maintain the Software to the latest version as soon as practicable and to incorporate all corrections and enhancements to the Software provided by Company. Licensee understands that its failure to incorporate error corrections and enhancements will cause the Software to be non-conforming and that subsequent Software error corrections, enhancements and updates may be unusable.
If the License Agreement terminates for any reason, this Support Exhibit shall terminate as well. Company may terminate this Support Exhibit or suspend Support Services if Licensee fails to make payment as provided under this Agreement or breaches this Support Exhibit and such breach is not remedied within 15 days after Licensee receives notice of the breach.
Licensee agrees to pay fees and other charges as specified in the Order Form for the Support Services. Termination of this exhibit will not relieve Licensee of its obligations to pay all fees, other charges and expenses that accrued prior to such termination.
5. Error Priority Levels
Company shall exercise commercially reasonable efforts to correct any sufficiently identified Error reported in writing by Licensee’s Technical Support Contact in accordance with the priority level reasonably assigned to such Error by Company. (a) In the event of (i) a crash of Licensee’s computer network causing a critical impact to business operations that Licensee reasonably believes is due to an Error in the Software or (ii) Priority A Errors, Company will promptly commence verification of the Error and, upon verification, will initiate work to provide Licensee with an Error Correction. For Licensee’s that have purchased Enterprise Support, Company will make the initial verification of the Error and report its findings back to by Licensee within 1 hour of the report of the Error by Licensee. Company will provide Licensee with reports on the status of the Error Correction every 2 hours. If commercially feasible, Error Correction will be delivered within 24 hours of the report of the Error by Licensee. For Licensees that have purchased Basic Support, Company will provide Licensee with periodic reports on the status of the Error Correction. If commercially feasible, Error Correction will be delivered within 72 hours of the report of the Error by Licensee. (b) In the event of Priority B Errors, Company will commence verification during normal support hours of the Error, and upon verification, initiate work to provide Licensee with Error Correction. For Licensees that have purchased Enterprise Support, Company will make the initial verification of the Error and report its findings back to by Licensee within 6 hours of the report of the Error by Licensee. If commercially feasible, Error Correction will be delivered within 1 week of the report of the Error by Licensee. For Licensees that have purchased Basic Support, Company will provide Error Correction in the next Update of the Software. (c) In the event of Priority C Errors, Company may include the Error Correction for the Error in the next Update of the Software.
If Company believes that a problem reported by Licensee may not be due to an Error in the Software, Company will so notify Licensee. At that time, Licensee may (a) instruct Company to proceed with problem determination at Licensee’s possible expense as set forth below or (b) instruct Company that Licensee does not wish Company to pursue the problem. If Licensee requests that Company proceed with problem determination at Licensee’s possible expense and Company determines that the error was not due to an Error in the Software, Licensee shall pay Company, at Company’s then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred by Company. If Licensee instructs Company that it does not wish the problem pursued at its possible expense or if such determination requires efforts in excess of Licensee’s instructions, Company may, at its sole discretion, elect not to investigate the problem with no liability therefore.
Company shall have no obligation to support: (a) altered, damaged or modified Software or any portion of the Software incorporated with or into other software, except for modifications or alterations provided as a result of Service or Support provided by Company; (b) Software that is not the then current release (except as provided in Section 2 above); or (c) Software problems caused by use of or changes to third party software with which the Software is used; or (d) Software problems caused by Licensee’s negligence, abuse or misapplication, use of Software other than as specified in the Documentation (including incompatible operating environments and systems, unless Services have been specifically provided to make the Software compatible with such operating environments), accidents, acts of nature or other causes beyond the control of Company. (e) Software problems caused by conditions beyond the Company’s reasonable control, such as environmental and natural disasters, strikes, acts of war, viruses introduced by parties other than Company, etc.
Company shall have no liability for any changes in Licensee’s hardware which may be necessary to use Software due to an Update (including any Error Correction).
In addition to warranty disclaimers provided in the License Agreement, Company does not warrant or represent that every reported problem can or will be resolved to the satisfaction of Licensee and does not warrant uninterrupted or error free operation of the Software or any other product or service provided by Company.
Exhibit B - Professional Services
This Professional Services exhibit (“Services Exhibit”) by and between Company and Licensee provides the terms and conditions for certain professional services by Company to Licensee related to Licensee’s use of the Product, as defined in the Master License Agreement between the parties (the “License Agreement”). All terms not otherwise defined in this Services Exhibit have the meanings provided in the License Agreement. The terms and condition in this exhibit only apply if Licensee has purchased professional services.
1. Services to be Provided
Company agrees to provide the services (“Services”), and Licensee agrees to pay the fees, identified in separate statement(s) of work. If any onsite visits to Licensee’s premises are necessary, Licensee agrees to provide Company with reasonable access to the premises, Licensee’s equipment and other parts of Licensee’s system as may be necessary or appropriate. Company will use commercially reasonable efforts to perform the Services for Licensee in accordance with the schedule specified in the applicable statement(s) of work.
If the License Agreement terminates for any reason, this Services Exhibit shall terminate as well. Company may terminate this Services Exhibit or suspend Professional Services if Licensee fails to make payment as provided under this Agreement or breaches this Services Exhibit and such breach is not remedied within 15 days after Licensee receives notice of the breach.
3. Fees and Payment
Unless otherwise specified in a separate statement of work, Company will periodically invoice Licensee for fees and other charges and reimbursable expenses for the Services. Invoices will be due and payable within 30 days of invoice date. Termination of this exhibit will not relieve Licensee of its obligations to pay all fees, other charges and expenses that accrued prior to such termination.
4. Proprietary Rights
Unless otherwise expressly agreed to in writing, Company and Licensee agree that any and all deliverables or work product provided to Licensee (“Deliverables”) or other results of the Services shall be owned exclusively by Company including all intellectual property and proprietary rights therein. Licensee shall have only a non-exclusive license to the Deliverables during the term of the License Agreement pursuant to the license to the Software granted in the License Agreement.
5. Licensee Assistance
Licensee shall provide Company with such resources, information and assistance as Company may reasonably request in connection with the performance of the Services. Licensee acknowledges and agrees that Company’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Licensee of the information, resources and assistance requested. Company shall have no liability for deficiencies in the Services resulting from the acts or omissions of Licensee, its agents or employees or performance of the Services in accordance with Licensee’s instructions.
Exhibit C - Hosted Services
This Hosting Services exhibit by and between Company and Licensee is hereby incorporated into the Master License Agreement (the “License Agreement”). All terms not otherwise defined in this Hosted Services Exhibit have the meanings provided in the License Agreement. The terms and condition in this exhibit only apply if Licensee has purchased hosting services.
If the License Agreement terminates for any reason, this Hosted Services Exhibit shall terminate as well. Company may terminate this Hosted Services Exhibit or suspend Hosted Services if Licensee fails to make payment as provided under this Agreement or breaches this Hosted Exhibit and such breach is not remedied within 15 days after Licensee receives notice of the breach.
This exhibit shall remain in effect until the earlier of (a) termination of this exhibit as provided herein, or (b) any termination of the License Agreement. Either party may terminate this exhibit by giving to the other party written notice of such termination upon the other party’s material breach of any material term of this exhibit (subject to the other party’s right to cure within 30 days, or in the case of nonpayment 10 days, after receipt of such notice). Upon any termination of this exhibit, Company shall have no further obligation to perform hosting services for Licensee.
Licensee agrees to pay fees and other charges as specified in the Order Form for the Hosted Services. Termination of this exhibit will not relieve Licensee of its obligations to pay all fees, other charges and expenses that accrued prior to such termination.
3. Service Level: System Availability
Company shall provide the Hosted Services on a 24 hours per day, 365 days per year basis with an availability uptime set forth in the Order Form, excluding scheduled maintenance which shall not be performed during normal business hours of operation from 9:00 AM to 5:00 PM (MST). Company will provide Licensee with its maintenance schedule and will endeavor to pre-notify Licensee of any non-scheduled maintenance. The term “availability uptime” means that the Software hosted by Company, is accessible and available to Licensee and Users without interference or interruption, excluding any Excused Delay.
4. Service Level: Security
Company shall provide adequate and appropriate physical and technical security, in no event less that those security standards set forth in the Statement on Standards for Attestation Engagements (“SSAE”) 16.
In the event that Company fails to meet any of the Service Levels set forth in this exhibit (each such failure, a “SLA Failure”) within a calendar month, and such failure is not excused due to any Excused Delay (as defined below), then Licensee shall be entitled to receive service level credits as follows (each, a “SLA Credit”):
For System Availability: The ratio of unavailable minutes to total potentially available minutes (net of Excused Delays) in the applicable calendar month during which the Service Level was not met multiplied by the monthly fee for the Hosted Services due for such month (1/12 of the annual fee if the Hosting Fee is paid annually).
Notwithstanding anything to the contrary, in no event shall the value of the SLA Credits exceed three (3) months of Hosted Services (“SLA Credit Cap”). Licensee shall notify Company in writing if Licensee believes it is entitled to any SLA Credit, which notice shall be provided no later than thirty (30) days after the end of the applicable month in which the SLA Failure(s) occurred, and shall describe the SLA Failure(s) in detail. If Company agrees that Licensee is due a SLA Credit, Company will promptly credit Licensee’s account. If Company does not believe Licensee is entitled to a SLA Credit, the parties will meet and discuss the issue in good faith. If the parties cannot mutually agree on a resolution, Company’s determination shall be binding and final. In the event Licensee brings any claim for damages based upon response times, then any such damages shall be offset by any SLA Credits issued to Licensee hereunder.
For purposes herein, “Excused Delay” shall mean (a) scheduled maintenance, (b) maintenance or service interruptions requested by Licensee and implemented by Company, (c) Licensee’s breach of any provision of this Agreement that solely and directly caused the delay, (d) any delay solely and directly caused by any Licensee Data, (e) performance of internet services, or (f) force majeure under the License Agreement.