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Master Services Agreement

This Master Software and Services Agreement (the “MSA” or “Agreement”) constitutes a binding legal agreement between the End User or Customer specified on the applicable Order Form (“Customer”) and the insightsoftware contracting entity specified in the applicable Order Form, whose principal office is at 8529 Six Fork Road, Suite 400, Raleigh NC 27615, United States (“insightsoftware”) (each a “Party” and collectively, the “Parties”) with regard to (i) Customer’s use of the proprietary software associated with this Agreement, (ii) any updates provided by insightsoftware to Customer (collectively, the “Software”), (iii) any standard installation materials, specifications, and online user documents, and other documentation relating to the Software made available by insightsoftware to Customer (“Documentation”), and (iv) the provision of other related services by insightsoftware. By signing the Order Form in connection with a purchase of Software, Support, or Services, Customer accepts the terms and conditions of this Agreement.

1. Order Form

  • 1.1. Order Form. To the extent that Customer or an employee of Customer is accessing the Software through a license granted to its organization or employer, this Agreement is subject to the terms and conditions of the Master Services Agreement, order form, or other applicable written agreement between such organization and insightsoftware (the “Order Form”), including without limitation the applicable number of licensed users, software license, and support fees, provided that in the event of any conflict between the terms of this Agreement and the Order Form, the terms and conditions of this Agreement shall control.

2. Grant of License

  • 2.1. Limited License Grant. Subject to the terms of this Agreement and payment of the fees set forth in the Order Form, insightsoftware hereby grants to Customer, and Customer accepts, a worldwide, non-transferable, nonexclusive, non-sublicensable, revocable license to use the object code version of the Software and Documentation only as authorized in this Agreement during the Term. Customer is not permitted to use the Software in any manner not expressly authorized by this Agreement. This Agreement shall remain in full force and effect for the duration of Customer’s use of the Software.
  • 2.2. License Types. insightsoftware licenses Software to Customer either in perpetuity, subject to the terms and conditions of this Agreement, (a “Perpetual License”) or for a fixed term (a “Subscription License”), subject to the terms and conditions of this Agreement, as designated in the applicable Order Form.
  • 2.3. Reservation of Rights to Software, Updates, and Documentation. insightsoftware reserves all rights in the Software, updates and Documentation not specifically granted herein.
  • 2.4. No Transfer or Assignment. The rights and licenses granted to Customer under this Agreement are personal to Customer and except to the extent expressly authorized in writing by insightsoftware are not transferable or assignable to another end user without the prior written consent of insightsoftware.
  • 2.5. Limited Use. Customer may use the Software and Documentation provided to Customer by or on behalf of insightsoftware for the duration of the Term specified in the applicable Order Form, solely for Customer’s internal business purposes, provided Customer complies with the restrictions set forth in this Section.
  • 2.6. Affiliates. Affiliates shall be included in the license granted pursuant to an applicable Order Form and the terms of the Agreement if indicated in the applicable Order Form. Customer agrees that it shall be responsible for any breach of this Agreement by any Affiliates as if such breach was caused by the direct acts of the Customer.
  • 2.7. Named User and Customer Affiliate Limits. Customer may use the Software for a cumulative total of the number of end user licenses designated in the applicable Order Form (each a “Named User”), and up to a cumulative total of the number of separate Customer Affiliates designated in the applicable Order Form. If a number of Customer Affiliates is not designated in the Order Form, the number of Customer Affiliates is unlimited.
  • 2.8. Named User Replacements. Customer may permanently replace a Named User with another if the original Named User no longer has access to the Software or to reports, messages, or other output generated by the Software. insightsoftware reserves the right at any time to audit Customer’s records for the purpose of verifying that Customer’s use of Software is consistent with the number of Named Users and licenses granted by this Agreement and the applicable Order Form(s), with reasonable notice and at insightsoftware’s expense. In the event that any such audit reveals a discrepancy in the number of Named Users or authorized use of the Software, insightsoftware will invoice Customer for any additional Named Users or use of such Software not included as provided for above, otherwise as amended in writing by the Parties, or in accordance with an additional Order Form added to this Agreement, which invoice will be due immediately upon receipt. If such discrepancy is in excess of more than 5% of the authorized Named Users or reveals use of the Software other than the authorized use of the Software, Customer shall reimburse insightsoftware for its reasonable costs in performance of any such audit. The foregoing audit rights shall survive termination or expiration of the Agreement, however occurring.
  • 2.9. Back-Up Copies. Except as stated otherwise herein or as required under applicable law, for the duration of the Term, Customer may make back-up copies of the Software and Documentation as reasonably required for archival and disaster recovery purposes, provided that Customer may only possess a single back-up copy of the Software, updates and Documentation at any given time.

3. Delivery and Implementation

  • 3.1. Delivery. If applicable, insightsoftware will electronically deliver to Customer the Software listed in the Order Form, along with related installation instructions and documentation as would be normally made available by insightsoftware in connection with the Software (“Documentation”) promptly after execution of the Order Form.
  • 3.2. Installation. Except as otherwise set forth in the Agreement or a Statement of Work, all Software products included under the applicable Order Form are to be installed by Customer. The installation process is supported through insightsoftware’s normal tech support “hot line”. Installation of all such Software shall only be on devices controlled by the same Windows login for each licensed user. For the sake of clarity, one user may install such Software on both a Personal Computer (“PC”) and a laptop, for example, as long as both devices are controlled by the same Windows login for that user and the password and user ID for such Software is the same on both devices for that user. The minimum prerequisite hardware/software requirements are stated in the Documentation.
  • 3.3. Implementation and Training Services. If specified in the applicable Order Form, insightsoftware will provide Customer with training and/or implementation services as set forth in the applicable Order Form. Except as otherwise set forth in a Statement of Work, the Parties will use commercially reasonable efforts to complete training/implementation services within 90 days of delivery of the Software or services set forth in the applicable Order Form. On-site training class size is limited to eight (8) attendees. There will be a charge for an additional instructor for more than 8 attendees. Customer will reasonably cooperate with insightsoftware so as to enable insightsoftware to provide and complete the training/implementation services in accordance with the terms herein.
  • 3.4. Helpdesk Usage. If Customer does not purchase training/implementation services, any training related calls through insightsoftware’s helpdesk will be billed at insightsoftware’s then-current hourly rate, billed in half hour increments.

4. Term and Termination

  • 4.1. Term. The term of this Agreement shall commence on Effective Date of the applicable Order Form and shall continue for the duration of the applicable term set forth in the Order Form (the “Initial Term”), either on a perpetual or subscription basis as designated in the applicable Order Form, unless terminated earlier as set forth herein.
  • 4.2. Automatic Renewal of Subscription Licenses. To the extent Customer subscribes to Subscription Licenses, Customer’s subscription to the Subscription Licenses will automatically renew at the end of the then-current term for successive terms each for the same length of time as the Initial Subscription License Term specified in the applicable Order Form (each, a “Subscription License Renewal Term”, and together with the Initial Subscription License Term, the “Subscription License Term”). For example, if the Initial Subscription License Term is one year, each Subscription License Renewal Term will be for one year. insightsoftware reserves the right to modify the Subscription License fees annually by providing Customer at least sixty (60) days written notice.
  • 4.3. Termination of Entire Licensing Agreement. Subject to the limitations set forth in this Agreement, the entire Agreement may be terminated in the following ways:
    • 4.3.1. Termination of Entire Licensing Agreement for Breach. insightsoftware may terminate this Agreement for cause in the event of any material breach by Customer of this Agreement that remains uncured thirty (30) days after written notice is given of the material breach. Non-payment of fees shall be considered a material breach of this Agreement. If fees remain unpaid for more than thirty (30) days past the due date of any applicable invoice, insightsoftware shall be entitled to suspend all services and terminate this Agreement and all existing licenses.
    • 4.3.2. Termination of Entire Licensing Agreement for Prohibited Activity. This Agreement may be terminated in its entirety by insightsoftware immediately if Customer engages in any of the prohibited activities listed in Section 6.
    • 4.3.3. Termination of Order Form. This Agreement shall automatically terminate upon termination or expiration of all applicable and active Order Forms. For clarity, if Customer has more than (1) active Order Form, the Agreement shall not terminate automatically unless all of Customer’s active Order Forms have expired or been terminated.
  • 4.4. Termination of Support Services. Customer and insightsoftware shall be entitled to terminate Support Services only as set forth in Section 11 of this Agreement.
  • 4.5. Termination of Cloud Services. Customer and insightsoftware shall be entitled to terminate Cloud Services only as set forth in Section 12 of this Agreement.
  • 4.6. Consequences of Termination. Upon termination of this Agreement under Section 4.2 for any reason: (a) all of Customer’s rights in or related to the Software, updates and Documentation will terminate immediately; (b) Customer will immediately cease all use of the Software, updates and Documentation; (c) Customer will destroy or return to insightsoftware all Software, updates and Documentation in Customer’s possession or control including parts which have been modified, merged or included with other software, and , within ten (10) days, certify to insightsoftware in writing that Customer has fully complied with its obligations under this Section; and (d) Customer will pay to insightsoftware within thirty (30) days all amounts owed by Customer to insightsoftware under this Agreement or the Order Form, including without limitation, all outstanding Software license fees, Support Services fees, and Cloud Services fees. Notwithstanding anything to the contrary contained in this Agreement, any Sections which, by their nature would survive a termination or expiration of this Agreement, shall survive any expiration or termination of the Software Licenses, Support Services, Cloud Services, or the entirety of this Agreement.
  • 4.7. Accrued Obligations and No Refunds. Notwithstanding anything to the contrary in this Agreement, termination of this Agreement, or any Software license, Support Services, or Cloud Services, however occurring, shall neither relieve Customer of any accrued obligations to pay money to insightsoftware under the terms of this Agreement, nor entitle Customer to any refund of fees for Software licenses, Support Services, Cloud Services, or other amounts paid under the terms of this Agreement..
  • 4.8. Customer Data Upon Termination. All Customer Data whatsoever held within the Cloud Services is the sole property of the Customer. Upon termination of this Agreement, all tables and other Customer Data will, at the request of the Customer, be promptly removed from the Cloud Services and passed to the Customer in a mutually agreed format. insightsoftware shall ensure that all data it receives from Customer within the Cloud Services is kept safe and secure at all times. For the avoidance of doubt, Customer shall be entitled to use the output information generated from use of the Services during the term of this Agreement including, but not limited to, the Customer Data for its own purposes after termination of this Agreement.

5. Payment:

  • 5.1. Fees. The fees in the applicable Order Form(s) represent the fees for the designated Initial Subscription License Term and designated Initial Support Term. Fees designated as Perpetual License fees and Services fees are one-time fees.
  • 5.2. Invoicing and Payment. insightsoftware will invoice Customer for fees due under an applicable Order Form or as otherwise set forth on an applicable order page for the Software or Support Services. Unless otherwise set forth in the Order Form, Customer shall pay all invoices in full within thirty (30) days of the due date on the invoice.
  • 5.3. Reimbursements. Customer agrees to reimburse insightsoftware for its reasonable travel expenses (airfare, lodging, meals and ground transportation, etc.) actually incurred in connection with providing any Services designated in an applicable Order Form.
  • 5.4. Billing. If, exceptionally, Customer requests that, for its own convenience, insightsoftware is to invoice an Affiliate or associated company for the fees in an applicable Order Form or Support renewal, insightsoftware will use commercially reasonable efforts to honour such request. When paid in accordance with the terms of this Agreement, such payment will satisfy the liability of Customer for the fees shown in an applicable invoice. However, it is acknowledged and understood by the Parties that any such change of the entity billed does not change the contracting Parties, the ownership of the applicable licenses, or the terms of this Agreement. If an invoice is not paid by the designated Affiliate or associated company by the due date specified on the applicable invoice, insightsoftware shall re-issue the invoice directly to the Customer for the fees and the Customer will remain liable in accordance with this Agreement.
  • 5.5. Taxes and Other Charges. Unless Customer provides insightsoftware a valid tax exemption certificate, Customer agrees to pay any and all applicable taxes resulting from any transaction hereunder, except for any taxes based on insightsoftware’s net income. All amounts referenced in any applicable Order Form are due to insightsoftware and are exclusive of all taxes including federal, state and local use, sales, property, ad valorem, excise and similar taxes, as well as any customs duties paid or payable, however designated related to this transaction. Customer will make payment to insightsoftware whenever insightsoftware is required to pay or collect such amount from Customer and unless required by law, Customer shall not deduct from payments to insightsoftware any amounts paid or payable to third Parties for customs duties or taxes, however designated.
  • 5.6. Late Fees. For any invoice not paid within thirty (30) days of the due date of the invoice, insightsoftware may assess and Customer shall pay a service charge accruing thereafter until the date of payment of the greater of (a) the rate of one and one-half percent (1.5%) per month (eighteen percent [18%] per annum) or (b) the maximum lawful interest rate applicable.
  • 5.7. Collection Costs. Customer will pay all costs and expenses (including, but not limited to, insightsoftware’s attorney/solicitor fees) incurred by insightsoftware in connection with the collection of overdue, unpaid amounts owed to insightsoftware by Customer under the terms of this Agreement. Customer agrees it may be contacted, and its access to the Services may be suspended, by insightsoftware and/or its suppliers or licensors for any failure to pay amounts due under this Agreement or for any violation of this Agreement.
  • 5.8. Professional Services. Customer shall only be entitled to purchase Professional Services from insightsoftware if Customer is current on Support, License, Cloud, and Service Fees. If the payment(s) of any Support, License, Cloud, or Service Fees are outstanding or delinquent, insightsoftware reserves the right to deny or delay the provisioning of Professional Services until Customer becomes current on outstanding Fees owed to insightsoftware.
  • 5.9. Subscription License, Support Services, and Cloud Services Renewal Terms. insightsoftware will invoice Customer sixty (60) to ninety (90) days prior to the commencement of the next Subscription Renewal Term, Support Services Renewal Term, or Cloud Services Renewal Term to remind Customer of the upcoming renewal of this Agreement, and to provide the then-current price for the upcoming Subscription Renewal Term, Support Services Renewal Term, or Cloud Services Renewal Term.

6. Use of the Software

  • 6.1. Processing of Information. Subject to the terms of this Agreement, Customer may use the Software 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. Source Code. The Software provided under this Agreement shall not include, and Customer shall not access or attempt to access the source code of the Software in any form.
  • 6.3. Proprietary Notices. The Software and Documentation shall at all times contain all proprietary and copyright notices originally appearing thereon and Customer shall not take any action which would adversely affect proprietary rights or copyrights therein.
  • 6.4. Limitation on Users. Customer’s right to use the Software is limited to the number of individual users specified in the Order Form associated with this Agreement. Customer shall not share its user ID and password to access the Software, and shall protect the security of its password.
  • 6.5. Reservation of Rights. insightsoftware reserves all rights not specifically granted herein.
  • 6.6. Operating Environment. Customer shall be solely responsible for providing and maintaining at Customer’s own expense the operating environment in which the Software will function and be used and the overall effectiveness and efficiency thereof, including, but not limited to, all equipment, hardware, and other devices and all site preparation, installation, integration, testing, and similar activities required for Customer to use the Software in accordance with the provisions hereof, and insightsoftware shall assume no such responsibilities. Once Customer installs the Software, except for insightsoftware’s warranty obligation set forth in Section 10 or as otherwise expressly set forth in this Agreement, insightsoftware shall have no further liability or responsibility to Customer with respect to the Software, Customer’s use thereof, or any of Customer’s data, records, documents, results, or other information or materials used or generated by or on behalf of Customer or any other Party in connection therewith.
  • 6.7. Outside Service Providers. In the event that Customer wishes to allow its outside service provider and/or auditor access to a Software during its license Term for the License, the Customer shall be permitted to do so provided that any such outside service provider and/or auditor is subject to written obligations of confidentiality that are substantially similar to those set forth herein, that such outside service provider and/or auditor use the Software solely for the Customer’s internal business purposes pursuant to the terms of this Agreement, and that Customer shall be responsible for any breach of this Agreement by any such outside service provider and/or auditors.

7. Prohibited Activities

  • 7.1. Prohibited Activities. Except as explicitly permitted in this Agreement or required under applicable law, Customer may not, directly or indirectly:
    • 7.1.1. sell, rent, lease, loan, sublicense, transfer, assign, distribute, disclose or provide access to the Software, updates or Documentation or use the Software, updates, or Documentation on a “service bureau” basis or for any other time-sharing purposes to any Party other than Customer’s Affiliate(s), or in any other way allow unauthorized third Parties to use or exploit the Software;
    • 7.1.2. modify, adapt, translate or create derivative works based upon the Software, updates or Documentation;
    • 7.1.3. modify, remove or cover proprietary notices in or on the Software, updates or Documentation;
    • 7.1.4. de-compile, disassemble, reverse engineer, or otherwise seek to discover the source code of the Software or updates;
    • 7.1.5. use license keys, certificates or access codes with the Software or updates other than those authorized by insightsoftware for Customer’s use of the Software or updates; or
    • 7.1.6. distribute or make available license keys, certificates or access codes for the Software or updates to a third party;
    • 7.1.7. circumvent or attempt to circumvent any anti-copying mechanisms that may or may not be included in the Software. Such mechanisms may include, but are not limited to: technology designed to prevent unauthorized use and copying or to enforce limitations on number of users;
    • 7.1.8. use the Software in a manner not authorized by this Agreement;
    • 7.1.9. use the Software 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;
    • 7.1.10. authorize or permit unauthorized use of or access to the Software.

8. Title

  • 8.1. Rights in the Software and Documentation. All rights, title and interest in and to the Software and Documentation, including without limitation all enhancements, updates, modifications and corrections to and derivatives of the Software and Documentation, including any intellectual property rights furnished under this Agreement, shall remain with insightsoftware or its licensors and this Agreement does not grant Customer any intellectual property rights in the Software and Documentation or any of its components . Customer agrees that any modification or enhancement to the Software or Documentation, or derivative works based upon the Software or Documentation, developed by or on behalf of Customer with or without advice or support by insightsoftware, by insightsoftware for Customer, or by or on behalf of any other party shall be the exclusive property of insightsoftware (in the case of the insightsoftware Software or Documentation) or the applicable third party (in the case of Third-Party Software). In the event that, by operation of law or otherwise, any right, title, or interest in or to the Software, Documentation, or any such enhancements, modifications, or derivative works of the Software or Documentation vests in Customer or any employees, officers, directors agents, or other representatives (collectively, “Representatives”) of Customer’s, Customer hereby irrevocably, unconditionally, and without encumbrance of any kind assigns to insightsoftware (in the case of insightsoftware Software or Documentation) or the applicable third party (in the case of Third-Party Software), and forever waive and agree never to assert, and shall cause all such Representatives to irrevocably, unconditionally, and without encumbrance of any kind assign to insightsoftware (in the case of insightsoftware Software or Documentation) or the applicable third party (in the case of Third-Party Software), and forever waive and agree never to assert, all such right, title, and interest. In addition, Customer shall, and shall cause all such Representatives to, execute all documents, and undertake all other activities, reasonably required by insightsoftware (in the case of insightsoftware Software or Documentation) or the applicable third party (in the case of Third-Party Software) in order to vest all such right, title, and interest in insightsoftware (in the case of insightsoftware Software or Documentation) or the applicable third party (in the case of Third-Party Software).
  • 8.2. Modifications. No modifications or changes made by Customer to the Software, Documentation or services, however extensive, shall reduce the title and ownership rights of insightsoftware or its licensors, to the Software, Documentation, or Services. Notwithstanding the foregoing, any modifications may void the warranty.
  • 8.3. Open Source and Third-Party Software. The Software and 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 open source Third-Party Software is listed in the Documentation of applicable Software, is licensed directly by Customer pursuant to the public licenses associated with such software, and is not sublicensed by insightsoftware under the terms of this Agreement.
  • 8.4. External Software and Hardware. insightsoftware also provides information on the necessary operating systems, database and utility software, and hardware for the operation of each Software product in the applicable Software Documentation (“External Software”). Customer is responsible for the supply of all operating system software, utility programs, and hardware necessary for the proper operation of each program. insightsoftware is not responsible for the performance of any External Software or hardware.
  • 8.5. Reasonable Assistance. When reasonably requested by insightsoftware, Customer will promptly execute any instruments and take any additional steps that insightsoftware considers necessary or desirable for the purpose of effecting, perfecting, registering, or otherwise confirming the ownership of the items referred to in this Section, or otherwise for the purpose of implementing fully the intention expressed in this Agreement.

9. Confidentiality

  • 9.1. Confidential Information and Handling. “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, and, in the case of the Customer, any Customer Data. “Customer Data” means all proprietary information and data owned by the Customer and input into the Software as part of the use of the Software in accordance with the terms of this Agreement. Confidential Information of insightsoftware also includes the results of any tests or analyses run by Customer on the Software or Services, including, but not limited to, functionality testing, code review, static code analysis, unit testing, single user performance testing, or vulnerability testing. The results of reports and Customer Data run through the Software shall be treated as the Confidential Information of both parties and shall be subject to the limitations described in this Section. 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. Confidential Information of Customer includes the all Customer data. Confidential Information of insightsoftware also includes the Software, Documentation, the Order Form, pricing thereof, and the results of any tests or analyses run by Customer on the Software. 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 9.1. 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.
  • 9.2. Usage Statistics. 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.
  • 9.3. Irreparable Harm. Each Party acknowledges and agrees that violation of this Section 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, without needing to post any bond, and without limitation of any other rights and remedies available to it.

10. Limited Warranty

  • 10.1. Authority. Each Party warrants and represents that it has all requisite legal authority to enter into, execute and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
  • 10.2. Software Warranty. insightsoftware warrants that the Software will substantially conform in all material respects to its Documentation at the time the Software is delivered to Customer. At no additional cost, and as Customer’s sole and exclusive remedy for failure to meet the limited warranty set forth in this Section 10, and as insightsoftware’s sole obligation and liability under this Section 10, insightsoftware will use commercially reasonable efforts to correct the specified nonconformity to the applicable Software, or at insightsoftware’s sole discretion and option, refund the applicable Software license fee paid by Customer upon return of the applicable Software and Documentation, which will serve to terminate this Agreement. The foregoing warranty obligation applies only if Customer promptly notifies insightsoftware in writing of said nonconformity within thirty (30) days following delivery of the Software, and such notice outlines the specific details of the nonconformity.
  • 10.3. Virus Warranty.
    insightsoftware warrants that shall use commercially reasonable measures to scan the Software for viruses and prohibit the inclusion of viruses in the Software prior to the delivery of the Software to Customer.
  • 10.4. Cloud Services Warranty. insightsoftware warrants that its Support Services and Cloud Services shall provided to Customer in accordance with insightsoftware’s then-current Support Services and Cloud Services policies per this Agreement and such Support Services and Cloud Services will be performed consistent with generally accepted industry standards.
  • 10.5. Warranty Limitations. The limited warranty set forth in this Section shall be void if the failure of the Software to conform is caused by (i) the use of the Software other than the most current version, (ii) use or operation of the Software other than as instructed in the Documentation, including 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.
  • 10.6. WARRANTY EXCLUSIONS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, INSIGHTSOFTWARE AND ITS DIRECT AND INDIRECT SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARDS TO THE SOFTWARE, SUPPORT SERVICES, CLOUD SERVICES, OR OTHER PROFESSIONAL SERVICES SUPPLIED IN ACCORDANCE WITH THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY WARRANTY ARISING FROM STATUTE OR OTHERWISE IN LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USEAGE OF TRADE. INSIGHTSOFTWARE DOES NOT REPRESENT OR WARRANT THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES INSIGHTSOFTWARE WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. 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 OR USE OF THE SOFTWARE IN COMBINATION WITH ANY OPERATING SYSTEM NOT AUTHORIZED IN THE DOCUMENTATION OR WITH HARDWARE OR SOFTWARE SPECIFICALLY FORBIDDEN BY THE DOCUMENTATION.
  • 10.7. No Internet, External Software, or External Hardware Warranty. insightsoftware is not responsible for problems caused by changes in the operating characteristics of computer hardware or computer operating systems which are made after the release of the Software, nor for problems in the interaction of the Software with non-insightsoftware-provided software. In the event that the Software, Support Services, or Cloud Services are delivered to Customer via the Internet, insightsoftware shall not be responsible for any interception or interruption of any communications through the Internet, or for changes to or losses of data through the Internet. The delivery of an update, new release, new version or correction in accordance with the Support Services does not extend any warranty for any Software.
  • 10.8. Third-Party Software Warranties. Warranties made by the publisher of Third-Party Software are solely those of that publisher. insightsoftware agrees that, to the extent possible, it will assign to Customer any and all warranties made by the publisher in respect of Third-Party Software.

11. Support

  • 11.1. Provision of Support Services. Customer may receive support services to the extent agreed upon in the Order Form and subject to the payment of the applicable fees (collectively, the “Support Services”). The terms and conditions of Support Services are detailed here: https://insightsoftware.com/terms-of-use-privacy-policy/#support (the “Support Policy”). insightsoftware may provide Customer with updates or revisions to the Software from time to time, but is not obligated to do so under this Agreement, except to the extent such updates are part of Customer’s Support Services subscription as set forth in the Support Policy.
  • 11.2. Initial Support Term. The Initial Support Term is specified in the applicable Order Form, is non-cancellable, and Support fees are non-refundable, unless otherwise provided for in the Agreement.
  • 11.3. Support Fees. Support fees and the designated Support Term are specified in the applicable Order Form.
  • 11.4. Support for Subscription Licenses. If the license type is indicated in the applicable Order Form is a Subscription license, then Support fees are included in the Subscription license fees.
  • 11.5. Co-Terminus Support Fees. The Support Services fee for additional licenses of purchased Software will be co-terminus with Customer’s existing Support Term and insightsoftware will prorate the invoice for the additional Support Services fees to align with Customer’s anniversary date. Annual Support Services fees for each subsequent year is due in advance on each anniversary.
  • 11.6. Automatic Renewal of Support Services. To the extent Customer subscribes to Support Services, Customer’s subscription to Support Services will automatically renew at the end of the then-current term for successive terms each for the same length of time as the Initial Support Term specified in the applicable Order Form (each, a “Support Renewal Term”, and together with the Initial Support Term, the “Support Term”). For example, if the Initial Support Term is one year, each Renewal Term will be for one year. insightsoftware reserves the right to modify the Support Services fees annually by providing Customer at least sixty (60) days written notice.
  • 11.7. Termination of Support Services. Unless the Support Services are terminated by either Party upon sixty (60) days prior written notice prior to the expiration of the then-current Support Services Term or any subsequent Support Services Renewal Term, the Support Services will automatically renew in accordance with Section 11.6, the payment for which is due annually in advance of the Support Services Renewal Term date.
  • 11.8. Reinstatement of Support Services. Reinstatement of lapsed or terminated Support Services is subject to payment of insightsoftware’s reinstatement policies, procedures, and fees in effect on the date of reinstatement.
  • 11.9. Support Services Eligibility, Support Services Limitations, and General Support Services Provisions.
    • 11.9.1. Reproducible Error. Software issues are only supported if the problem reported is reproducible in the unmodified base version of the Software.
    • 11.9.2. Solution Functionality. It is the Customer’s responsibility before implementing or requesting assistance with implementation from insightsoftware of any updates of the Software to test, validate and change the functionality in any Solution in order to establish that the Solution will function after such updates of the Software have been implemented. insightsoftware does not give any warranties whatsoever that, after the installation of such update, bug fix or enhancement, any Solution will continue to function as it did prior to such update. For the purpose of this Agreement, “Solution” means any customer-specific solution created for the Customer in association with the Software or Services, including, but not limited to, reports, forms, dashboards, an integrations or other customer-specific solutions which do not affect the source code of the Software, but are created within the Service or by other tools, by insightsoftware, an insightsoftware partner, and/or by the Customer.
    • 11.9.3. Termination or Suspension of Support Services for Non-Payment. Not withstanding anything to the contrary in this Agreement, insightsoftware reserves the right to suspend or terminate Support Services at any time when Customer is not current in the payment of all fees and charges due to insightsoftware under its Agreements.
    • 11.9.4. External Hardware or External Software In the event that an issue is confirmed to be the result of general environmental issues on operating systems, hardware or third-party software, any such issues will not be handled by Support Services.
    • 11.9.5. Update or Correction Terms and Conditions. Any Corrections, new releases, updates, and versions received under Support Services shall be subject to the terms of this Agreement. For the purposes of this Section, the following definition applies:
      • 11.9.5.1. A “Correction” is a patch or other remedial measure in machine readable object code form prepared by insightsoftware or its designated supplier to bypass or remedy an error (as determined by insightsoftware or its designated supplier) in the Software.
    • 11.9.6. Use of General Knowledge. Subject to the terms and conditions of this Agreement, the Parties agree that insightsoftware may use general ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques which were developed or created in the course of performing the Support Services or professional services and which may be retained in the memory of insightsoftware’s personnel.

12. Cloud Services

  • 12.1. Definition of Cloud Services. “Cloud Services” means hosting services provided by insightsoftware in order to deliver the hosted Software solution set forth in the applicable Order Form, and subject to the terms and conditions of both this Agreement and the Cloud Services Addendum attached here as Exhibit A. For clarity, this Section is inapplicable if Customer has not purchased, and the Order Form does not specify, any Cloud Services.
  • 12.2. Cloud Services Term. If an applicable Order Form specifies a purchase of insightsoftware Cloud Services, subject to the payment of the fees on the applicable Order Form (or the relevant Software remaining in good standing), insightsoftware hereby agrees to provide to Customer access to the Software and the hosting support services in accordance with the terms and conditions of this Agreement and the terms and conditions of Exhibit A for the term set forth in the relevant Order Form for such Cloud Services (“Cloud Services Term”). If no term for the Cloud Services is specified in the applicable Order Form, then, subject to the payment of applicable fees, insightsoftware shall provide Customer access to the Software and the hosting support services in accordance with the terms and conditions of this Agreement and the terms and conditions of Exhibit A for a twelve-month period commencing on the Order Form Effective Date. Cloud Services will be provided at the rates set forth in the applicable Order Form in accordance with the terms and conditions of this Agreement. If rates are not set forth in the applicable Order Form, Customer will be charged for the Cloud Services for the applicable Cloud Services Term at the then-current insightsoftware Cloud Services rates.
  • 12.3. Automatic Renewal of Cloud Services. Unless the Cloud Services are terminated by either Party upon sixty (60) days prior written notice prior to the expiration of the Cloud Services Term or any subsequent renewal of the Cloud Services Term, Cloud Services will automatically renew for an additional 12-month period, the payment for which is due annually in advance. insightsoftware reserves the right to modify the Cloud Services fees annually by providing Customer at least sixty (60) days written notice.
  • 12.4. Termination of Cloud Services. Subject to the terms set forth in Section 12.3, Customer shall have the option to provide written notice to insightsoftware pursuant to the foregoing provisions to terminate the Cloud Services without incurring a penalty or affecting the Support Term. For clarity, Customer shall not be entitled to a refund of any prepaid Cloud Services fees if Customer terminates Cloud Services under this Section.
  • 12.5. Cloud Services through a Partner. If Customer receives Cloud Services through a Partner, or a Partner hosts their Software or data, insightsoftware shall not be responsible for the hosting or Cloud Services provided. Customer shall contract independently with Partner to establish Cloud Services or terms and conditions, which will not be applicable to insightsoftware in any way. For clarity, In the event that a Partner provides Cloud Services or hosting to a Customer, Exhibit A and its Annexes shall not apply.

13. Indemnification

  • 13.1. Customer’s Indemnification Obligation. Subject to the terms and conditions set forth in this Section 13.1, 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 allegations, threats, claims, suits, and proceedings brought by unaffiliated third parties (collectively “Claims”) arising from liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) arising from an allegation that Customer’s unauthorized use of the Software or any Customer data infringes such third party’s copyrights or trademarks, or misappropriates such third Party’s trade secrets; and shall indemnify insightsoftware Indemnitees from and against Losses to the extent based upon such a Claim. The foregoing indemnification obligations apply only if 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.
  • 13.2. insightsoftware’s Indemnification Obligation. Subject to the terms and conditions set forth in this Section, 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 SETS FORTH INSIGHTSOFTWARE’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT

14. Limitation of Liabilities

  • 14.1. General Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR BREACHES OF CONFIDENTIALITY SET FORTH ABOVE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF LICENSE AND/OR SUPPORT SERVICES FEES PAID BY CUSTOMER TO INSIGHTSOFTWARE FOR THE RELEVANT SOFTWARE WITHIN THE PRECEDING TWELVE (12) MONTHS.
  • 14.2. Data Backup. UNLESS CUSTOMER HAS PURCHASED INSIGHTSOFTWARE CLOUD SERVICES, CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP CUSTOMER’S DATA. IN NO EVENT WILL INSIGHTSOFTWARE BE LIABLE FOR ANY LOSS, CORRUPTION, MODIFICATION, OR DAMAGE TO CUSTOMER’S DATA.
  • 14.3. No Indirect Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY SET FORTH ABOVE, 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.
  • 14.4. Limitation on Indirect Damages. Some countries and/or states and jurisdictions do not allow the exclusion or limitation of special, indirect, incidental or consequential damages, so the above limitations and exclusions may not apply to all Customers. In that case, the liability of insightsoftware is limited to the maximum extent possible by law.
  • 14.5. Distributors, Resellers, and Integrators. All Software, Support Services, and Cloud Services provided by insightsoftware to Customer shall be provided subject to the provisions of this Section unless the Parties expressly agree in writing to the contrary, referencing this Section by number. Customer acknowledges and agrees that (i) any insightsoftware-appointed distributors, resellers or integrators are independent entities and are not agents of insightsoftware; (ii) insightsoftware is not liable for nor bound by any acts or omissions of such distributors, resellers, or integrators, including but not limited to any services provided or to be provided by such entities to Customer in connection with any Software licensed hereunder; and (iii) no insightsoftware-appointed distributor, reseller, or integrator has authority to modify this Agreement in any fashion, including but not limited to the warranties or limited remedies set forth in this Agreement.
  • 14.6. No Additional Warranties. INSIGHTSOFTWARE DISCLAIMS ANY REPRESENTATION OR WARRANTY PURPORTED TO BE MADE ON INSIGHTSOFTWARE’S BEHALF BY ANY THIRD PARTY TO CUSTOMER WHETHER EXPRESS OR IMPLIED.
  • 14.7. Limitation on Actions. No claim may be asserted by either Party against the other Party with respect to any event, act or omission for which a claim accrued more than two (2) years prior to such claim being asserted.

15. Subcontracting.

  • 15.1. Use of Subcontractors. insightsoftware may, in its sole discretion, subcontract its obligations under this Agreement provided that insightsoftware shall remain ultimately liable for the performance of subcontractor in accordance with this Agreement.

16. Assignment

  • 16.1. Customer’s rights in and to the Software provided under this Agreement may not be assigned, licensed, pledged, or otherwise transferred voluntarily, whether by merger, operation of law or otherwise without insightsoftware’s prior written consent, and any such prohibited assignment shall be null and void. Further, any change in control of Customer shall be deemed an attempt by Customer to assign or transfer this Agreement. For purposes of the foregoing provision, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of Customer, whether through the ownership of voting securities, by contract or otherwise. Any assignment or attempted assignment in breach of this Section shall be void.

17. Notices

  • 17.1. All notices required to be given under this Agreement shall be given in writing and shall be deemed to have been given when (i) delivered by hand, (ii) mailed by prepaid registered or certified mail, return receipt requested, (iii) sent by commercial courier with written verification of the receipt, or (iv) sent by email, with a copy sent at the same time by either registered or certified mail to each Party at its addresses set forth herein or at such other address as either Party may designate to the other by notice as required hereby. Such notice shall be deemed given on the date of the receipt (or refusal) of delivery. All notices to Customer shall be sent to the address provided on the applicable Order Form at the time of licensing, unless and until written notice is given of any other address. Unless and until written notice is given by insightsoftware of any other address, all notices to insightsoftware shall be sent to:

insightsoftware
Attention: Legal
8529 Six Forks Road, Suite 400,
Raleigh NC 27615, United States

18. Export Compliance

  • 18.1. Customer shall not permit any third party to access or use the Software in violation of any law or regulation or export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo.

19. Data Protection

  • 19.1. The following paragraph applies where Customer is established in the European Economic Area (as defined in GDPR), or where Customer’s use of this Software is otherwise subject to Regulation (EU) 2016/679 (“GDPR”): in respect of any personal data processed (including collection and storage) by insightsoftware in connection with the provision of the Software and related services, insightsoftware shall as a processor comply with the provisions of Article 28(3) of the GDPR, which are hereby incorporated by reference into this Agreement. For the purposes of Article 28(2) of the GDPR, insightsoftware shall be generally authorized to appoint sub-processors, provided it complies with the provisions of Article 28(4) of the GDPR. For the purposes of Article 28(3)(h) of the GDPR, Customer acknowledges that its right to an audit or inspection shall be fully satisfied by sight of an independent third party audit report supplemented by a right to request further information from insightsoftware which demonstrates its compliance, and that Customer shall have no right to conduct on-site audits of insightsoftware’s processing facilities. Customer (as “data exporter”) and insightsoftware (as “data importer”), with effect from the commencement of any relevant transfer, hereby enter into the Standard Contractual Clauses (processors) for the purposes of Article 26(2) of Directive 95/46/EC set out in Decision 2010/87/EC as the same are revised or updated from time to time by the European Commission (“SCCs”) in respect of any transfer to insightsoftware (or onward transfer) where such transfer would otherwise be prohibited by the GDPR in the absence of the SCCs. Appendix 1 to the SCCs shall be deemed to be prepopulated with the information about the data processing described in this Agreement. Appendix 2 to the SCCs shall be deemed to be prepopulated with the following: “Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood for the rights and freedoms of natural persons, insightsoftware shall ensure a level of security appropriate to the risk, including as appropriate the specific controls described in Article 32(1), (a) to (d) inclusive of GDPR and including any other controls mandated by applicable data protection laws.”

20. Governing Law and Venue

  • 20.1. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Delaware without regard to the conflicts of laws principles. Each Party hereby consents to the personal and exclusive jurisdiction and venue of the state and federal courts located in Wake County, North Carolina, United States, with regard to any suit or claim arising under or by reason of this Agreement. Neither Party will commence or prosecute any suit or claim to enforce this Agreement, or otherwise arising under or by reason of this Agreement, other than in such courts.
  • 20.2. Exclusion of United Nations Convention on Contracts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, which is expressly excluded.

21. General

  • 21.1. Titles and Paragraph Headings. Titles and paragraph headings are for convenient reference and are not a part of this Agreement.
  • 21.2. Entire Agreement. This Agreement, together with the Order Form 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. The foregoing notwithstanding, the pre-printed 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 Order Form.
  • 21.3. Force Majeure. Neither Party will be liable for any delay or failure of its performance under this Agreement if it results from causes beyond its control (“Force Majeure Event”) provided that the Party claiming a Force Majeure Event (a) provides the other Party with notice of a Force Majeure Event as soon as practicable following the occurrence of the same; and (b) performs fully and completely all its other obligations in accordance herewith during the existence of such Force Majeure Event; and (c) uses its commercially reasonable best efforts to recommence full and complete performance of its obligations as soon as possible after the occurrence of such Force Majeure Event. Notwithstanding the same, Customer will not be relieved of any payment obligation.
  • 21.4. No Waiver. 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.
  • 21.5. Severability. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect.
  • 21.6. No Representation. 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.
  • 21.7. Service of Process and Reasonable Attorneys’ Fees.
    Regardless of which insightsoftware entity is identified in the applicable Order Form, with respect to any action, suit or proceeding (a) each Party irrevocably consents to the service of process from any of the aforesaid courts by mailing copies by registered or certified mail, postage prepaid, to such Party at its address designated pursuant to this Agreement, with such services of process to become effective upon receipt; (b) each Party irrevocably waives the right to trial by jury; and (c) the prevailing Party will be entitled to recover its reasonable attorney/solicitors fees, court costs and other legal expenses from the other Party.
  • 21.8. Marketing Communications. By signing any applicable Order Form, Customer agrees that insightsoftware or its licensors or suppliers may send Customer information regarding new products and services and other marketing communications unless Customer notifies such Party it wishes to opt out of receiving such communications. Customer understands that even if it so opts out, it nevertheless will continue receiving system messages and other communications relating to the operation of the Software it has purchased.
  • 21.9. Use of Trademarks and Logo. Customer agrees that insightsoftware may utilize Customer’s trademark(s), trade name(s) and logo(s) in insightsoftware’s customer lists and marketing materials during insightsoftware’s sales processes. In accordance with insightsoftware’s reasonable requests, Customer agrees to provide telephone references regarding their usage and experiences of the insightsoftware Software solution purchased by Customer for up to six (6) potential new customers per year. In accordance with insightsoftware’s reasonable requests, Customer agrees to work with insightsoftware to create a case study about their implementation of their insightsoftware Software solution, within one (1) calendar year following successful implementation of the Software, which would be subject to the right of editorial veto by the Customer.
  • 21.10. Entity Limitation. If the Order Form is entered into by an Affiliate of insightsoftware rather than insightsoftware, then this Agreement shall be between such insightsoftware Affiliate and Customer, rather than insightsoftware and Customer. In such case, Customer agrees that any claim that Customer may have under this Agreement will be only against the insightsoftware Affiliate that entered into the Order Form with Customer, that insightsoftware and such Affiliate shall not have joint and several liability, and Customer will make no claim under this Agreement against insightsoftware or any other insightsoftware Affiliate.
  • 21.11. United States Government Contracting. 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.
  • 21.12. Translations. The original of this Agreement is in English; any translations are provided for reference purposes only. The English version of this Agreement shall govern the transaction. Customer waives any right it may have under the law of Customer’s country to have this Agreement written or construed in the language of any other country. Further, the Parties hereto have requested that this Agreement, all correspondence and documentation relating to this Agreement, be written in the English language.

EXHIBIT A

TO THE MASTER SOFTWARE AND SERVICES AGREEMENT

CLOUD SERVICES TERMS AND CONDITIONS
If Customer has purchased the Cloud Services as designated in the applicable Order Form, this Exhibit A is hereby incorporated into and made a part of the insightsoftware Master Software and Services Agreement (the “MSA”) between the Parties. In the event of a conflict between the terms of this Exhibit A and the Master Software and Services Agreement, the terms of the Master Software and Services Agreement shall govern.

1. Term. The Term of the Cloud Services will begin on the Order Form Effective Date and continue for a term as specified in the applicable Order Form (“Initial Cloud Services Term”). The term shall be automatically renewed for a twelve month period (each a “Cloud Services Renewal Term”) on the anniversary of the Order Form Effective Date or the preceding Cloud Services Renewal Term commencement date, unless cancelled by either party upon sixty (60) days prior written notice prior to the expiration of either the Cloud Services Term or Cloud Services Renewal Term (together the “Cloud Services Term”), as applicable. If Customer terminates this Agreement, the Cloud Services Term, or the Cloud Services Renewal Term, Customer will not be entitled to reimbursement for any Cloud Services fees paid.

2. Provision of Cloud Services. Subject to the payment of applicable fees, insightsoftware hereby agrees to provide and hereby grants a license to Customer access to the Product in insightsoftware’s hosting environment by up to the number of Customer’s Named Users as specified in the applicable Order Form, in accordance with the terms and conditions of this Exhibit A and the MSA, solely for Customer’s internal information management and internal data processing purposes. The Cloud Services will include providing access to the Software using an Internet web server, at a location (or locations) selected by insightsoftware, for the purpose of hosting the use of the Software by Customer.

3. Fees. Customer shall pay annually to insightsoftware a fee for the Cloud Services. The fees for the initial Cloud Services Term are specified in the applicable Order Form. insightsoftware may increase the applicable fees for Cloud Services for each Cloud Services Renewal Term over the Initial Cloud Services Term or the previous Cloud Services Renewal Term, as applicable, provided that insightsoftware gives Customer sixty (60) days notice of such increase. Any resulting increase in the fees is effective from the commencement of the applicable Cloud Services Renewal Term.

4. Payment. Payment of Cloud Services fees is due on the Order Form Effective Date and each annual anniversary thereof, respectively.

5. Additional Named Users. Additional Named Users added in accordance with (i) additional Order Forms executed by Customer, or (ii) any User Reports furnished by Customer shall be subject to insightsoftware’s then-current rates for all such additional Named Users plus any applicable, then-current hosting fee for any such additional Named Users.

6. User Reports. During the Initial Cloud Services Term and any Cloud Services Renewal Term, upon insightsoftware’s reasonable request, Customer agrees to furnish to insightsoftware a report (a “User Report”) on an annual basis which identifies the current Named Users and Named Users added during the immediately preceding one-year period, as applicable, and identify each such Named User’s role (i.e. employee, consultant, tax service provider, auditor). Customer shall furnish the first User Report upon execution of this Agreement, and each subsequent annual User Report shall be provided to insightsoftware upon insightsoftware’s reasonable request not less than sixty (60) calendar days prior to the annual anniversary date of the Effective Date of this Agreement. Customer may permanently replace a Named User with another Named User in accordance with the terms of the MSA. Customer shall not allow Named Users to share usernames and passwords.

7. Availability of Cloud Services. The Availability Time (as defined below) of the Cloud Services each calendar month during the Cloud Services Term will be no less than 99.5% (based upon an average 30-day month).

  • 7.1. Availability Time and Excused Downtime. insightsoftware shall provide the Cloud Services to Customer in order to permit users access to the Product at all times following the date hereof, during the term of Cloud Services except during: (a) such reasonable time as is necessary for Maintenance Activities (as defined below); (b) the occurrence of any Force Majeure Event; or (c) any down time in the Cloud Services caused by internet or cloud service providers or caused by other telecommunications facilities used by Customer and other users permitted hereunder ((a) through (c), collectively, “Excused Downtime” and such access time minus the Excused Downtime, the “Availability Time”).
  • 7.2. No Breach. Customer agrees that insightsoftware will not be in breach of this Agreement if its failure to provide the Cloud Services is due to Excused Downtime.

8. Maintenance Activities. The following will be maintenance activities undertaken by insightsoftware in respect of the Cloud Services (the “Maintenance Activities”):

  • 8.1.1. Normal maintenance activities that may or may not disrupt service (“Planned Maintenance Event”). insightsoftware will use reasonable commercial efforts to provide four (4) days advance notice of a Planned Maintenance Event and all work will be performed during a standard maintenance window between the hours of 3 a.m. to 6 a.m. Eastern Time on any planned day or days for any such Planned Maintenance Events when commercially feasible. In addition, every third Sunday of each calendar month, insightsoftware reserves a three-hour window between 12:01am and 03:01am EST for general Cloud Services Maintenance Activities.
  • 8.1.2. Maintenance required due to degradation of the Cloud Services (“Planned Emergency Maintenance Events”). insightsoftware will endeavour to provide 48-hours’ notice in advance if conditions permit and all work will be performed during a standard maintenance window on Wednesdays or Sundays from 3 a.m. to 6 a.m. Eastern Time.
  • 8.1.3. Maintenance required due to loss of service (“Unplanned Emergency Maintenance Events”). insightsoftware will utilize best efforts to notify Customer in advance if conditions permit.
  • 8.1.4. insightsoftware may amend the service levels as defined in this Exhibit A periodically provided that: (a) Customer is informed in advance; and (b) the amendment does not materially alter the provisions of the Cloud Services.

9. Data Storage and Backup. insightsoftware will use commercially reasonable efforts to provide daily data backup of Customer’s data and upon Customer’s written request, insightsoftware shall provide a data file restore (in the format used by insightsoftware to backup such data) based on the most recent data backup conducted for up to a six (6) calendar day retention period. Notwithstanding the foregoing, Customer’s data and Customer’s data backup storage shall not exceed 20GB. Customer’s compliance with government laws and regulations associated with the creation, retention or disposition of computer generated data is the responsibility of Customer. insightsoftware is not responsible for the archiving or backup of Customer’s data files that are in use or open during the creation of an archive data set.

10. Access, Acceptable Use Policy, and Minimum Security Precautions. Customer agrees to adhere to insightsoftware’s or its service providers’ security precautions in connection with the use of the Services, including but not limited to, the minimum Customer security precaution set forth in the attached Annex 1 which forms an integral part of Exhibit A. Customer shall be responsible for unauthorized use of the Cloud Services by any person, unless such unauthorized use results from insightsoftware’s failure to perform its obligations hereunder. Customer agrees to fully indemnify and hold insightsoftware harmless against any claims, losses, and expenses (including but not limited to reasonable attorneys’/solicitors’ fees) for any failure to comply with this Section.

11. Customer’s Data Upon Termination or Expiration. Upon any termination or expiration of this Agreement or the Term of Cloud Services, Customer shall have a fifteen (15) calendar day period following the last day of this Agreement or the Term of Cloud Services to request Customer’s data in an exportable/readable format, and insightsoftware shall provide such data upon Customer’s request within fifteen (15) calendar days of insightsoftware’s receipt of Customer’s request. After such fifteen-day period, insightsoftware shall have no obligation to make Customer’s data available to Customer or to retain any of the same.

12. Cloud Services Service Levels. If Customer has purchased the Cloud Services as designated in the applicable Order Form, the Service Level terms of Annex 2 to Exhibit 1 shall apply to the provision of Cloud Services products only. For clarity, any products not hosted in the insightsoftware cloud shall be subject to the service level policies located in the standard insightsoftware Support Policy.

13. Disclaimers.

  • 13.1. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. EXCEPT AS SET OUT IN THIS AGREEMENT AND THIS SCHEDULE C, THE CLOUD SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE CLOUD SERVICES IS AT ITS OWN RISK. INSIGHTSOFTWARE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INSIGHTSOFTWARE DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, INSIGHTSOFTWARE DOES NOT WARRANT AND HEREBY DISCLAIMS THAT THE CLOUD SERVICES WILL PROVIDE PROTECTION FROM (a) VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, CANCELBOTS, OR OTHER HARMFUL OR DELETERIOUS PROGRAMMING ROUTINES, (b) DATA LOSS, (c) UNAUTHORIZED, UNKNOWN, OR UNFORESEEABLE SECURITY BREACHES, ACCESSES, OR ATTACKS INTO OR AFFECTING THE EQUIPMENT OR OTHER SYSTEMS, AND (d) ANY FORM OF REAL-TIME DETECTION OF ANY OR ALL OF THE FOREGOING. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE CLOUD SERVICES CHOSEN. NEITHER PARTY SHALL MAKE ANY REPRESENTATIONS OR WARRANTIES ON THE OTHER PARTY’S BEHALF.
  • 13.2. INSIGHTSOFTWARE IS NOT RESPONSIBLE FOR ANY DEFECTS OR DAMAGES TO CUSTOMER’S HARDWARE, SOFTWARE SYSTEMS OR DATA RESULTING FROM (a) CUSTOMER’S, CUSTOMER’S AGENTS’, OR CUSTOMER’S EMPLOYEES’ MISHANDLING, ABUSE, MISUSE, OR ACCIDENT; OR (b) CUSTOMER’S USE OR PROVISIONING OF CUSTOMER EQUIPMENT ELECTRICALLY OR MECHANICALLY INCOMPATIBLE WITH CLOUD SERVICES OR OF INFERIOR QUALITY. INSIGHTSOFTWARE WILL NOT BE RESPONSIBLE FOR ANY REASON FOR ANY THIRD PARTY EQUIPMENT PROVIDED BY CUSTOMER OR DAMAGES THAT ARISE AS A RESULT OF DEFECTS OR ISSUES RELATED TO THE THIRD-PARTY EQUIPMENT.

ANNEX 1

TO EXHIBIT A, CLOUD SERVICES TERMS AND CONDITIONS

MINIMUM CUSTOMER SECURITY PRECAUTIONS

1. Endpoint Protection

  • 1.1. Customer agrees at all times during the Cloud Services Term and during any permitted access to the Cloud Service for the applicable period following any termination or expiration of this Agreement pursuant to terms of the Agreement that Customer will apply industry best practices to properly secure and protect their user endpoint computers from virus and malware. This includes ensuring the computers maintain the latest anti-virus signature updates.

2. Security Patches

  • 2.1. Customer agrees to ensure that all computers accessing the Cloud Services have all Microsoft and related vendor vulnerability and security patches applied within a reasonable time frame. Patches should be applied at regular intervals to ensure new vulnerabilities have been mitigated.

3. User IDs

  • 3.1. Customer agrees that User IDs will not be shared amongst users.
  • 3.2. All individuals permitted to use the User IDs must be made aware by Customer of the requirements to comply with the terms of this Agreement.
  • 3.3. User IDs are maintained by the Customer and all terminated employee User IDs must have their access revoked or User IDs removed by the Customer. The Customer is entirely responsible for safeguarding and maintaining the confidentiality of their Cloud Services account username(s) and password(s). When Cloud Services are not being accessed, all users should be logged out of the Cloud Services or have a password protected screensaver applied.

4. Corporate Security Policies

  • 4.1. The Customer must have in place these or similar corporate security policies and procedures;
    • 4.1.1.1. Corporate information security policy
    • 4.1.1.2. Internal confidentiality agreements
    • 4.1.1.3. Acceptable use
    • 4.1.1.4. Hiring and termination policies
    • 4.1.1.5. Physical security
    • 4.1.1.6. Antivirus Software
    • 4.1.1.7. Username administration
    • 4.1.1.8. User access management
    • 4.1.1.9. Internal incident management

ANNEX 2

TO EXHIBIT A, CLOUD SERVICES TERMS AND CONDITIONS

CLOUD SERVICES SERVICE LEVELS

1. Definitions.

  • a. “Customer Contact” is a Customer employee designated by Customer to be the liaison between Customer and Company regarding Service issues. A Customer Contact may be replaced upon five (5) day’s prior written notice to Company.
  • b. “Issue” means a failure of the Service to materially comply with the Documentation that can be reproduced by Company.
  • c. “Service Support Hours” means the hours of 3 am and 8 pm Eastern Time, Monday through Friday, excluding Company observed holidays (Christmas Day, Boxing Day, New Year’s Day and Labor Day).

2. Service Issues.

  • a. Technical Assistance. Company will provide technical assistance to Customer through up to six (6) Customer Contacts during Service Support Hours. In addition, Customer, through its Customer Contacts, shall have access to Company’s technical knowledge base and self service tools.
  • b. Issue Definition, Categorization and Response. Each Issue shall be assigned a Priority based on the type of Issue, and Company shall respond to submission of an Issue, all as set forth in the table below.
  • c. Issue Priorities and Response Level Terms.
    • i. When submitting a support request via the Customer Community, Customer must provide insightsoftware with all information necessary for insightsoftware to process the request. Customers must also respond promptly to insightsoftware with any information reasonably requested to clarify the support request. When Customer submits a Support Request, Customer should assign the problem Customer is experiencing a Severity Level, which is the level of urgency and the defined business impact. All Support Requests will be assigned a Priority Level by insightsoftware in accordance with the definitions described below.
    • ii. Insightsoftware understands that Priority Levels are defined because of functional failures, and there may be times that a reported failure may have a critical business impact to Customer that would not necessarily be apparent to insightsoftware. In such instance, and at Customer’s request based upon information Customer provides, insightsoftware may consider escalating the Support Request to a higher priority level to reflect the impact on Customer.
    • iii. An Acknowledgement is insightsoftware’s initial confirmation to Customer that insightsoftware has received Customer’s support request. A Restoration of services are actions that restore the product to conduct business requirements. A Resolution is a fix to the issue, which provides a stable solution to the Support Request.
    • iv. Customer Contacts may submit to Company reports of Issue(s), and such reports shall contain information reasonably necessary for Company to efficiently identify and confirm the Issue and commence addressing the Issue, including, without limitation, the following:
      • 1. A full description of the Issue and expected results.
      • 2. A reproducible test case that demonstrates the specific sequence that causes the Issue being reported.
      • 3. All applicable error, trace and system files.
      • 4. Exact wording of all error messages.
      • 5. Any special circumstances surrounding the discovery of the Issue.
      • 6. Any additional information and cooperation reasonably requested by Company.
  • d. Response Levels
    Response Expectations Step 1: Acknowledgement Step 2: Restoration and/or Action Plan
    Priority 1 Within 1 Regional Business Hour Work will start immediately upon Acknowledgement and will continue until Restoration of service. Status will be communicated daily or as needed based on the Resolution. Resolution will be included in a subsequently scheduled Update.
    *Priority 2 Within 2 Regional Business Hours Work will start upon Acknowledgement and will continue until a Restoration or a Restoration plan is in place. Status communicated upon Customer’s request or as needed based on the Restoration plan. Resolution will be included in a subsequently scheduled Update.
    *Priority 3 Within 4 Regional Business Hours The Error will be researched and Restoration or action plan will be communicated upon Customer’s request. Resolution will be included in a subsequently scheduled Update.
    *Priority 4 Within 8 Regional Business Hours The Error will be researched and Resolution or action plan will be communicated upon Customer’s request. Resolution will be included in a subsequently scheduled Update.
  • e. Priority Levels.
    Priority Functionality/ System Availability Financial/ Regulatory Impact Data Corruption Data Replication Install and Upgrades Planning
    Priority 1 System outage; Production down, System may be up, but is completely unusable.
    Significant application issue without a workaround prevents use.    		 Issue results in substantial fines or loss of revenue for the customer. Reporting Deadlines cannot be completed because of a significant application issue without a workaround. Widespread data corruption across the entire system. All Data Replication tasks have failed; customer source system and environment are working normally and are available. Install or Upgrade cannot be completed because of a significant application issue without a workaround. Planning Cycle cannot be completed because of a significant application issue without a workaround.
    Priority 2 Production System is working within acceptable parameters, but test / training / demo system exhibits P1 behavior / issues. An important application is impacted, but an acceptable workaround exists. Issue has the potential to result in moderate fines or loss of revenue. Reporting Deadlines are impacted by an application issue that does have a workaround, but workaround requires significant rework of setup. Isolated data corruption. One or More Data Replication tasks have failed, customer source system and environment are working normally and are available. Install or Upgrade has an application issue that does have a workaround, but the workaround should only be temporary or requires significant rework of setup. Planning Cycle is impacted by an application issue that does have a workaround, but workaround should only be temporary or requires significant rework of setup.
    Priority 3 All environments are available. Issue has the potential to result in minimal fines or loss of revenue.
    Reporting Deadlines has an issue that is minor to the application.    		 Minimal data corruption. One or More Data Replication tasks have significant latency; customer source system and environment are working normally and are available. Install or Upgrade has an issue that is minor on the application. Planning Cycle has an issue that is minor to the application.
    Priority 4 All environments are available. No financial or regular impact. No data corruption. No Replication Issue. No impact on Install or Upgrade. No impact on Planning Cycle.

3. Service Availability. Company will make available the Service to Customer’s production tenant 99.5% of the time, measured over a calendar month, provided, however, that the following shall not be considered downtime, and the time to perform the following shall not be included in the time the Service is unavailable: (i) preventative maintenance; (ii) application Updates to the Service; (iii) neither party will be liable for any delay or failure of its performance under this Agreement if it results from causes beyond its control (“Force Majeure Event”) provided that the party claiming a Force Majeure Event (a) provides the other party with notice of a Force Majeure Event as soon as practicable following the occurrence of the same; and (b) performs fully and completely all its other obligations in accordance herewith during the existence of such Force Majeure Event; and (c) uses its commercially reasonable best efforts to recommence full and complete performance of its obligations as soon as possible after the occurrence of such Force Majeure Event. Notwithstanding the same, Customer will not be relieved of any payment obligation.

4. Service Credits. In the event of a failure by Company to meet the Service Availability minimum as set forth in Section 3 of this SLA, as Customer’s sole and exclusive remedy, at Customer’s request, Company shall provide service credits in accordance with the following matrix:

  • a. First month of missed service availability minimum: The parties shall meet to discuss possible corrective actions;
  • b. Second consecutive month: 10% of the Subscription Fee paid for the applicable month for the affected Service;
  • c. Third consecutive month: 20% of the Subscription Fee paid for the applicable month for the affected Service;
  • d. Fourth consecutive month: 30% of the Subscription Fee paid for the applicable month for the affected Service;
  • e. Fifth consecutive month: 40% of the Subscription Fee paid for the applicable month for the affected Service; and
  • f. Sixth consecutive month: 50% of the Subscription Fee paid for the applicable month for the affected Service.
  • g. More than three consecutive months: Within thirty (30) days of such failure either Party shall have the option to terminate the entire Agreement and upon such termination, in addition to the service credits outlined above, Customer shall receive a refund of all prepaid subscription fees that are unearned as of the date written notice of such termination is received.

5. Exclusions. Notwithstanding anything to the contrary, Company will have no obligations related to maintenance and support, or responsibilities with respect to Service issues caused by: (1) the use or functioning of the Service with third party products other than those specified in the Documentation; (2) use of the Service in breach of the Agreement or the Documentation; (3) any modification, customizations or enhancements of the Service by any person or entity other than Company, (4), negligence of Customer or any third party under the control of the Company.