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
2. Grant of License
3. Delivery and Implementation
4. Term and Termination
6. Use of the Software
7. Prohibited Activities
10. Limited Warranty
12. Cloud Services
14. Limitation of Liabilities
insightsoftware Attention: Legal 8529 Six Forks Road, Suite 400, Raleigh NC 27615, United States
18. Export Compliance
19. Data Protection
20. Governing Law and Venue
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).
8. Maintenance Activities. The following will be maintenance activities undertaken by insightsoftware in respect of the Cloud Services (the “Maintenance Activities”):
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.
MINIMUM CUSTOMER SECURITY PRECAUTIONS
1. Endpoint Protection
2. Security Patches
3. User IDs
4. Corporate Security Policies
CLOUD SERVICES SERVICE LEVELS
2. Service Issues.
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:
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.