This Master Services Agreement (this “MSA”) constitutes a binding agreement between the insightsoftware entity listed in the Purchase Agreement (“insightsoftware”) and the Customer identified in the Purchase Agreement or the entity or person with access to insightsoftware proprietary Software (“Customer” or “You”). This MSA provides the terms and conditions upon which insightsoftware may grant Customer a license to use proprietary software and documentation including standard installation materials, specifications, and online user documents as normally made available by insightsoftware in connection with specific Software (“Documentation”) (such proprietary software and Documentation and all related updates provided to You by insightsoftware, are collectively called the “Software“), and the provision of other related services by insightsoftware, which may include providing Software to Customer on a Software-as-a-Service basis (“Services”).
3.1 Software License. Where the Customer licenses Software from insightsoftware under the applicable Purchase Agreement, and subject to the terms of this Agreement and payment of the fees set forth in the Purchase Agreement, insightsoftware grants to Customer a worldwide, non-exclusive, non-transferable right (with no right to sublicense) to use the Software provided by insightsoftware to You along with this Agreement and a license key for such Software (“License Key”), solely for the number of users specified in the Purchase Agreement. The Purchase Agreement shall specify if the license purchased is perpetual (“Perpetual License”) or for a term period (“Subscription License”). Customer may, at its option and expense, allow a third party to host the Software on its computers on Customer’s behalf. Customer is responsible for ensuring that the hosting entity complies with the terms and conditions of this Agreement and Customer is fully responsible to insightsoftware for the acts and omissions of such hosting entity. Customer is liable for any additional License fees due to insightsoftware in the event the hosting entity exceeds the number of users licensed or otherwise exceeds the scope of the license granted by this Agreement.
3.2 Subscription License Use Rights. Where the Purchase Agreement specifies that Customer has agreed to a specified subscription term, and subject to the terms of this Agreement and payment of the fees set forth in the Purchase Agreement, insightsoftware grants to Customer during the subscription term of the Purchase Agreement a worldwide, non-exclusive, non-transferable right (with no right to sublicense) to access and use the Service provided by insightsoftware to You.
3.3 Customer Responsibilities. Customer shall have sole responsibility for ensuring that Customer’s use of the Software to process its data or information complies with the terms of any third-party software or database license terms. Customer is responsible for undertaking the proper supervision, control and management of its use of the Software including, but not limited to: (a) assuring proper supported environment configuration, Software installation and operating methods; (b) installing and operating the Software and any new releases in conformity with any instructions received from insightsoftware; and (c) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction. Customer is responsible for maintaining a procedure external to the Software for reconstruction of lost or altered files, data and programs.
4.1 The term of this Agreement shall commence on the Effective Date and shall continue for the duration set forth in the Purchase Agreement unless terminated earlier as set forth herein. This Agreement shall remain in full force and effect until the termination or expiration of all Purchase Agreements entered in connection with this Agreement.
4.2 This Agreement may be terminated as set forth below.
4.2.1 for cause by either party in the event of any material breach by the other party which breach remains uncured thirty (30) days after the provision of written notice thereof;
4.2.2 by mutual written agreement of the parties; or
4.2.3 after all License fees are paid in full, (i) for perpetual Software licenses, and (ii) for Service fees for professional services, Customer may terminate this Agreement at any time for any reason, at Customer’s sole discretion, subject to Customer providing thirty (30) days prior written notice to insightsoftware (“Termination for Convenience”). For the sake of clarity, this Section 4.2.3 is applicable to Perpetual Software Licenses only. Termination for Convenience is not applicable for Subscription Licenses.
Upon insightsoftware’s receipt of a notice of Termination for Convenience, this Agreement will terminate in accordance with Section 4.3. Customer acknowledges and agrees that fees paid are not subject to refund in the event of any Termination for Convenience.
4.3 Upon termination of this Agreement for any reason, Customer shall discontinue use of any Software and Services, shall either return or destroy any Software within Customer’s possession or control, and shall certify in writing to insightsoftware that all copies of the Software have been returned or destroyed. Notwithstanding anything to the contrary contained in this Agreement, Sections 5 through 8, and 10 through 16 of this Agreement shall survive any expiration or termination of this Agreement for any reason.
5.1 All rights, title and interest in and to the Software and Services, including all enhancements, updates, modifications and corrections thereto and derivatives thereof, and all work product created in connection with the performance of Services, and any intellectual property rights therein furnished under this Agreement shall remain with insightsoftware or its licensors. As between insightsoftware and Customer, insightsoftware owns all work product related to or arising out of this Agreement and any methodologies, techniques, know-how and processes related thereto and any intellectual property rights therein, and such work product shall be licensed to Customer for use solely in accordance with the Software and Services pursuant to the terms of Section 3 of this Agreement. The Services and Software may be protected by U.S. copyright, trade secret and other laws and international treaty provisions. The Software, services and any work product are agreed to be insightsoftware’s or its licensors’ intellectual property, whether or not any portion thereof is or may be subject to an issued patent or copyright registration.
5.2 No modifications or changes made by Customer to the Software or Services, however extensive, shall reduce the title and ownership rights of insightsoftware or its licensors, to said Software; provided, however, that modifications will void any applicable warranties.
5.3 The Documentation may contain information on certain open-source and other third-party software that is included with or incorporated into the Software (“Third-Party Software”). Certain Third-Party Software must be and is licensed directly by You pursuant to the licenses associated with such software, and is not sublicensed by insightsoftware under the terms of this Agreement. The Documentation also lists prerequisite software (“External Software”) and hardware that You must acquire for use with the Software and Services for the applicable warranties to apply. insightsoftware is not responsible for the performance of any Third-Party Software, External Software or hardware.
5.4 insightsoftware shall be the sole owner of all intellectual property rights in and to any suggestions or feedback made or provided by Customer with respect to the Software and Services, and Customer hereby irrevocably assigns to insightsoftware all such intellectual property rights.
6.1 Subject to the terms of this Agreement, Customer may use the Software and Services solely to process information or records of Customer and its Affiliates. For purposes of this Agreement, an “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, “control” means the ownership of (i) greater than fifty percent (50%) of the voting power to elect directors of the company, or (ii) greater than fifty percent (50%) of the ownership interest in the company.
6.2 In no event may Customer use the Software or Services to process information or records of any third party other than an Affiliate of Customer, or allow timesharing, rental or use of the Software or Services in a service bureau or as a provider of outsourced services.
6.3 The Software and Services provided herein shall not include source code. Customer shall not decompile, or reverse engineer, or otherwise seek to discover the source code to the Software or Services.
6.4 Customer will not copy the Documentation, Software or Services in whole or in part, except for back-up or archival purposes, without the prior express written consent of insightsoftware.
6.5 The Software, Services and Documentation may contain trademark, copyright and other proprietary notices and markings, and Customer shall retain and not modify or remove any such notices or markings, and Customer shall not take any action which would adversely affect proprietary rights or copyrights therein. Customer may not adopt, use or register any trademark, trade name or other marketing name of insightsoftware or any of its Affiliates, nor use any confusingly similar trademark, trade name or other marketing name as those used or owned by insightsoftware or any of its Affiliates.
6.6 Customer shall not authorize or permit unauthorized access to the Software or Services. Customer shall not use the Software or Services to create, or enable any third party to create, any software or services that compete with any business of insightsoftware.
6.7 Customer shall not distribute, market, sell, lease, or sublicense the Software, and shall not use the Software or Services in a manner not authorized by this Agreement. Customer shall not use the Software or Services in a manner that violates any applicable law, including in violation of the intellectual property or other rights of any third party, including privacy rights.
6.8 Customer’s right to use the Software and Services is limited to the number of individual users specified in the Purchase Agreement associated with this Agreement. Customer shall ensure that each user shall access the Software or Services, as applicable, with a user ID and password that is unique to that user.
6.9 The Software and Services may include a License Key and other technology designed to prevent unauthorized use and copying, including without limitation to enforce limitations on number of users. This technology may prevent use of the Software and Services that is not permitted. You agree not to circumvent or attempt to circumvent any such anti-copying mechanisms.
6.10 insightsoftware reserves all rights not specifically granted herein.
7.1 “Confidential Information” means all information and materials obtained by a party (the “Recipient”) from the other party (the “Disclosing Party”), whether in tangible form, written or oral, that is identified as confidential or would reasonably be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information includes, without limitation, all information relating to the Disclosing Party’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information. Confidential Information of insightsoftware also includes the results of any tests or analyses run by You on the Software or Services. Confidential Information does not include information that (i) is already known to the Recipient prior to its disclosure by the Disclosing Party; (ii) is or becomes generally known through no wrongful act of the Recipient; (iii) is independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is received from a third party without restriction and without a breach of an obligation of confidentiality. Subject to the preceding sentence, Confidential Information includes the Services and Software and all Customer data and the pricing and terms set forth herein, as well as any Purchase Agreement. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section 1. The Recipient shall not use or disclose any Confidential Information without the Disclosing Party’s prior written permission except as necessary for the provision of the services or use of the Software, or as otherwise allowed herein. The Recipient shall protect the confidentiality of the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of a similar nature, but using not less than a reasonable degree of care. The Recipient may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order, provided that the Recipient provides prior notice of such disclosure to the Disclosing Party, unless such notice is prohibited by law.
7.2 insightsoftware shall have the right to view Customer usage statistics and may compile aggregate statistical analysis data and reports for internal use only. Any reporting that contains aggregated data shall preserve Customer’s anonymity and the confidentiality of Customer’s usage data.
7.3 Each party acknowledges and agrees that violation of this Section 7 may cause irreparable harm to the Disclosing Party, and the Recipient agrees that the Disclosing Party may seek injunctive relief if the Recipient breaches or threatens to breach this Section 7, without needing to post any bond, and without limitation of any other rights and remedies available to it.
8.1 Each party warrants and represents that it has all requisite legal authority to enter into this Agreement.
8.2 insightsoftware warrants that: (i) any Software provided to Customer will substantially conform in all material respects to its Documentation for a period of ninety (90) days immediately following the Effective Date (“Warranty Period”); and (ii) all Services will be performed by Customer in a professional, workmanlike manner. At no additional cost, and as Customer’s sole and exclusive remedy for failure to meet the limited warranty set forth in this Section 8, and as insightsoftware’s sole obligation and liability and Customer’s sole remedy under this Section 8, (A) for a breach of warranty with respect to Software, insightsoftware will use commercially reasonable efforts to correct the specified nonconformity to the applicable Documentation, or at insightsoftware’s sole discretion and option, refund the applicable Software license fee paid by Customer upon return of the applicable Software materials, which will serve to terminate this Agreement, and (B) for a breach of warranty with respect to Services, insightsoftware will use commercially reasonable efforts to reperform the applicable Services, or at insightsoftware’s sole discretion and option, refund the applicable Services fees paid by Customer and terminate this Agreement. The foregoing warranty obligation applies only if Customer promptly notifies insightsoftware in writing of said nonconformity, and such notice outlines the specific details of the nonconformity.
8.3 The limited warranty set forth in this Section 8 shall be void if a failure of the Software to conform is caused by (i) the use of the Software other than the most current version, (ii) the use or operation of the Software with an application or in an environment other than as set forth in the Documentation, or (iii) modifications to the Software that were not made by insightsoftware or insightsoftware’s authorized representatives.
8.4 Except as expressly set forth herein, neither party makes any representations or warranties of any kind, whether express or implied, including any warranties of merchantability, fitness for a particular purpose, or non-infringement. insightsoftware does not represent or warrant that Customer’s use of the Software will be error free. insightsoftware’s express warranties shall not be enlarged, diminished, or affected by and no obligation or liability shall arise out of insightsoftware’s rendering of technical or other advice or service in connection with the Software.
9.1 Subject to payment of applicable fees, Insightsoftware offers annual maintenance and support services for the Software (“Support“). Support is provided for the current release for the designated standard Software and includes the following: (i) error analysis when the Software is not performing in conformance with the Documentation; (ii) fixes as applicable to ensure conformance with the Documentation; (iii) Documentation updates as necessary; and (iv) new releases as insightsoftware deems appropriate; provided, that any such new release contain only standard code. Should Customer’s Software contain non-standard code, whether created by Customer or delivered by insightsoftware, Customer is responsible for integrating non-standard code into the new release. The cost of solving any problem attributable to non-standard code or attributable to interface software supplied by other vendors will be charged to Customer on a time and materials basis at insightsoftware’s then-current standard rates.
9.2 Support include Customer access to insightsoftware Customer Support. insightsoftware Customer Support includes reasonable consultation and assistance on proper use of the Software that can be accomplished by web, e-mail, or telephone.
10.1 insightsoftware’s Indemnification Obligation. Subject to the terms and conditions set forth in this Section 10.1, insightsoftware shall, at its own expense, defend Customer and its Affiliates, subsidiaries, officers, directors, shareholders, and employees (“Customer Indemnitees”) from and against any and all allegations, threats, claims, suits, and proceedings brought by unaffiliated third parties (collectively “Claims”) arising from an allegation that any Software or Services provided to Customer hereunder (“Subject IP”) as used in accordance with the Documentation and this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets; and shall indemnify Customer Indemnitees from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. The foregoing indemnification obligations apply only if each of the following conditions are met: Customer (i) gives insightsoftware prompt written notice of such Claim, (ii) grants insightsoftware sole control of the defense or settlement of such Claim and (iii) reasonably cooperates with insightsoftware, at insightsoftware’s expense, in its defense or settlement of the Claim. insightsoftware may, at its option and expense, (A) replace the Subject IP with compatible non-infringing functionality, (B) modify the Subject IP so that it is non-infringing, (C) procure the right for Customer to continue using the Subject IP, or (D) if the foregoing options are not reasonably available, terminate the license to use the Subject IP and refund Customer all license fees paid by Customer that is applicable to the Subject IP being terminated, pro-rated over a five (5) year useful life in the case of a perpetual license to Software. insightsoftware shall have no obligation to Customer with respect to any Claim if such Claim is based upon (I) Customer’s use of a version of the Subject IP that is not the most current version, if Customer’s liability would have been avoided with the use of the most current version, (II) Customer’s use of the Subject IP in a manner not expressly authorized by this Agreement, (III) the combination, operation, or use of the Subject IP with any third party product or service that was not listed in the Documentation, if Customer’s liability would have been avoided or reduced in the absence of such combination, use, or operation, or (IV) modifications to the Subject IP other than as authorized in writing by insightsoftware. THIS SECTION 10.1 SETS FORTH INSIGHTSOFTWARE’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT
10.2 Customer’s Indemnification Obligation. Subject to the terms and conditions set forth in this Section 10.2, Customer shall, at its own expense, defend insightsoftware and its Affiliates, subsidiaries, officers, directors, shareholders, and employees, (“insightsoftware Indemnitees”) from and against any and all Claims arising from an allegation of Customer’s unauthorized use of the Software, or any Customer data infringes or misappropriates such third party’s intellectual property rights, and shall indemnify insightsoftware Indemnitees from and against Losses to the extent based upon such a Claim. The foregoing indemnification obligations apply to the extent each of the following conditions are met: insightsoftware (i) gives Customer prompt written notice of such Claim, (ii) grants Customer sole control of the defense or settlement of such Claim, and (iii) reasonably cooperates with Customer, at Customer’s expense, in its defense or settlement of the Claim.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ANY LOST PROFITS OR LOST REVENUE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. INSIGHTSOFTWARE’S THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL DIRECT LIABILITY TO CUSTOMER AND ITS AFFILIATES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA AND OTHER SUCH DAMAGES.
15.1 Americas. If the address You provided in the Purchase Agreement is in North America, Central America or South America, the interpretation, construction, and validity of this Agreement shall be governed by the laws of the State of Delaware, USA without regard to the conflicts of laws principles.
15.3 Any Other Country. If the address You provided in the Purchase Agreement is in any other country, the interpretation, construction, and validity of this Agreement shall be governed by the laws of England and Wales.
15.4 In no event shall this Agreement be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16.1 Titles and Paragraph headings are for convenient reference and are not a part of this Agreement. This Agreement, including the Purchase Agreement and all documents incorporated herein by reference, constitutes the entire agreement between the parties relating to the Software and Services, supersedes in full all prior discussions, correspondence and agreements between the parties relating to the Software and Services and may be modified or supplemented only by a document agreed to by an authorized representative of each party. Any preprinted terms and conditions of any purchase order or other ordering document issued by Customer in connection with this Agreement shall be deemed to be for Customer’s convenience only and shall in no way modify, add to or delete from the terms and conditions of this Agreement or any Purchase Agreement.
16.2 insightsoftware shall not be liable for delays in any of its performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, strikes, acts of war, terrorism, failure of the Internet, or inability to obtain labor or materials on time.
16.3 No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof and no waiver shall be effective unless made in writing and signed by an authorized representative. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
16.4 The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
16.5 If the Purchase Agreement is entered into by an Affiliate of insightsoftware rather than insightsoftware, then this Agreement shall be between such insightsoftware Affiliate and You, rather than insightsoftware and You. In such case, You agree that any claim that You may have under this Agreement will be only against the insightsoftware Affiliate that entered into the Purchase Agreement with You, that insightsoftware and such Affiliate shall not have joint and several liability, and You will make no claim under this Agreement against insightsoftware or any other insightsoftware Affiliate.
16.6 If the Software or Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then, as a commercial item, the Government’s rights in the Software, Services, Content and Documentation will be only as set forth (i) in this Agreement or (ii) as provided in FAR 12.212 (Computer Software) and (for Department of Defense use or disclosure) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (i) or (ii) are the more restrictive.