Last modified: 24th March 2016
Customer Modifications means changes, updates, or modifications made by Customer pursuant to Section 2.2. Customer Modifications may be used by Customer in connection with the Software but InAppBI disclaims warranties and obligations to indemnify Customer as to Customer Modifications.
Documentation means the user guides and manuals for Software, including additional, updated or revised documentation, if any, provided by InAppBI to Customer for Customer’s own internal business purposes.
Instance means a copy of Software installed within a single operating environment.
Order Form means the cover sheet to this Agreement or any subsequent order form for additional Products or services that has been accepted by InAppBI.
Products mean the Software and Services provided by InAppBI hereunder. The Products do not include the Customer Modifications.
Services means the technical support and other services described herein and on an Order Form.
Software means the subscription software license described on an Order Form, related Documentation, and updates and enhancements made to the foregoing pursuant to Services, if and when made available by InAppBI. Software does not include the Customer Modifications.
User means an individual who is authorized by Customer to use, has access to or receives any benefit of exposure to, the specified Product, regardless of whether the individual is actively using the Product at any given time.
2. PRODUCTS AND LICENSE.
2.1 License Grant.
License Model: InAppBI grants Customer a fee-bearing non-exclusive, non-transferable (except in connection with a permissible assignment per Section 12.2), non-sublicensable license to install and use the Software for Customer’s internal business purposes, which includes the internal business purposes of any subsidiaries that Customer controls either directly or indirectly. Customer’s use is subject to the applicable per instance, user, database, field of use and other restrictions described on the Order Form. If Customer uses Products in excess of the specified metrics, Customer agrees immediately to report such additional usage to InAppBI and pay all additional fees due for periods when Customer exceeded the scope of its license.
Hosted Model: InAppBI grants Customer a fee-bearing non-exclusive, non-transferable (except in connection with a permissible assignment per Section 12.2), non-sublicensable license to use the hosted InAppBI software for Customer’s internal business purposes, which includes the internal business purposes of any subsidiaries that Customer controls either directly or indirectly.
2.2 License to Make Customer Modifications. InAppBI further grants to Customer the right to modify and adapt Data Models, Data API and Visualization scripts for Customer’s internal business purposes.
2.3 License Term. Each Software license is granted for the time period specified in the Order Form pursuant to which the Software is provided to Customer, or if no such term is stated, then for one year, in either case subject to the provisions of this Agreement.
2.4 Renewal. The subscription term will automatically renew for a period equal to the initial term unless either party notifies the other in writing at least thirty (30) days prior to expiration of the then-current term, so long as InAppBI makes the Products available. InAppBI will invoice Customer for the subscription fees at the list prices in effect at the time of renewal.
2.5 Restrictions. Customer shall not, and shall not allow others to: (a) cause or permit the reverse engineering, disassembly, or decompilation of any portion of any Products; (b) remove any copyright notices or other proprietary notices or restrictions from any of the Products; (c) knowingly disclose results of any benchmark or other performance tests to any third party without InAppBI’s prior written consent; or (d) distribute, sell, sublicense, rent, lease or use the Products (or any portion thereof) for time sharing, hosting, service provider or similar purposes.
2.6 Ownership. The Products constitute proprietary works of InAppBI and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, InAppBI and its licensors retain all rights, title and interest, including all intellectual property rights, in the Products and the Documentation. The terms “purchase” and “sale” in reference to the Products notwithstanding, it is expressly agreed by the parties that title to the Products does not pass to Customer and Customer’s rights with respect to the Products will only be that of a licensee.
2.7 No Transfers. The Products may not be transferred or redistributed to any third party, except in connection with a permissible assignment pursuant to Section 12.2. Customer may not permit access or use of the Products by any third party, except Customer’s employees and contractors performing services for Customer’s benefit. Customer may transfer the Products to another location within Customer’s organization or that of a contractor performing services for Customer’s benefit.
3.1 Support Terms.
License Model: InAppBI will provide the setup and installation Services identified on the Order Form and described on Exhibit A, and the technical support Services specified on Exhibit B. Unless otherwise specified in the applicable Order Form, a term of technical support is coterminous with the applicable Product subscription. Customer may renew technical support by advance payment of the technical support fees for the applicable Products, so long as made commercially available by InAppBI.
Hosted Model: If the Customer chooses Hosted Model, InAppBI will be responsible for managing the infrastructure and applying required software patches/ upgrades and making sure InAppBI services are up and running. InAppBI will provide the support identified on the Order Form and described on Exhibit B.
3.2 Training. Customer is responsible for providing support to Users. Technical support does not include training or consultation regarding configuration or implementation.
3.3 Customer Use. Customer will use good faith efforts to minimize the effects of any Product problem consistent with industry standards, including (a) adequate testing prior to live usage and (b) a review of Customer procedures at reasonable intervals. Customer also agrees to make provisions for the backup of data transmitted, received, generated or used in conjunction with the Products. InAppBI shall not be responsible for any loss or corruption of any such messages or data.
4. INVOICING, PAYMENT AND RECORDS.
4.1 Fees, Taxes and Payment. Customer shall pay to InAppBI in U.S. Dollars the fees in the amount and at the times specified on the Order Form. Unless otherwise stated, all fees are non-cancelable and non-refundable. All fees stated herein exclude, and Customer shall pay, any sales, use, value added, excise, property withholding or similar tax and any related tariffs, and similar charges, except taxes based on InAppBI’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to InAppBI hereunder. Customer will, and hereby agrees to, promptly reimburse InAppBI for any and all taxes or duties that InAppBI may be required to pay in connection with this Agreement upon receipt of InAppBI ’s invoice therefor. Customer’s failure to make any payment due hereunder by the due date shall give InAppBI the right to terminate this Agreement provided that InAppBI gives Customer notice of non-payment and ten (10) business days opportunity to cure.
4.2 Compliance. On InAppBI’s written request, but not more frequently than annually, Customer will furnish InAppBI with a signed statement verifying that the Products are being used in full compliance with the provisions of this Agreement.
5. CONFIDENTIAL INFORMATION.
5.2 Nondisclosure. Information will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) lawfully available to the public through no act or omission of the receiving party; (b) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 5.2 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
6. LIMITED WARRANTIES AND EXCLUSIVE REMEDIES.
6.1 Authority. Each of InAppBI and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously be a corporation in good standing in the jurisdiction of its formation.
6.2 Compliance with Laws. Each of InAppBI and Customer covenants that, at its sole respective cost and expense, it shall comply with all present and future national, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Software (collectively “Laws”) including, without limitation, all data privacy and processing Laws.
6.3 Software Warranty. InAppBI warrants to Customer that Software will perform the material functions described in the applicable Documentation when operated on the hardware and operating system platform generally supported by InAppBI and indicated on the Order Form pursuant to which it was provided. If Customer reports a Software nonconformity during the first ninety (90) days of this Agreement that results in a breach of the foregoing warranty then as Customer’s sole and exclusive remedy and InAppBI’s entire liability: (a) InAppBI will correct Software errors causing the nonconformity, or (b) if InAppBI determines that it is unable to make the Software operate as warranted using commercially reasonable efforts, InAppBI will refund the fees paid for the nonconforming Software and terminate this Agreement.
6.4 Warranty Exclusions. InAppBI is not obligated to correct errors caused by unauthorized modification to Software, by using Software other than as described in the Documentation, by non-InAppBI software, or by combining Software with any hardware or software not authorized by InAppBI in writing.
6.5 Technical Support Warranty. For breach of its Technical Support obligations, Customer’s exclusive remedy and InAppBI’s entire liability will be reperformance of the applicable Technical Support service at issue.
6.6 NO IMPLIED WARRANTIES. THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE PRODUCTS, TECHNICAL SUPPORT AND SERVICES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES OF InAppBI, WHETHER EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.7 DISCLAIMER. InAppBI DOES NOT WARRANT THAT ANY PRODUCT TECHNICAL SUPPORT, OR SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANY NON-InAppBI PROGRAMS USED BY CUSTOMER, THAT THE OPERATION OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CUSTOMER SHALL BE RESPONSIBLE OR THAT ALL ERRORS IN PRODUCTS OR DOCUMENTATION WILL BE CORRECTED.InAppBI SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
7. INFRINGEMENT INDEMNITY.
7.1 Indemnification. InAppBI at its own expense shall defend, indemnify and hold Customer, its affiliates, successors, assigns, members, shareholders, officers, directors and agents harmless against any third party claim or suit brought against Customer for damages to the extent due to any actual or alleged infringement of any trademark, trade secret, copyright or patent arising under the laws of the United States (collectively, “Intellectual Property Rights”) by Software (“Indemnified Software”) pursuant to the terms of this Agreement. The foregoing indemnity is subject to the following conditions: that (a) Customer promptly notifies InAppBI in writing of each such claim or suit and provides InAppBI with all information known to Customer relating thereto, (b) InAppBI at its option has sole control of the defense and/or settlement; and (c) Customer cooperates with InAppBI in the settlement and/or defense. Customer will be reimbursed for its reasonable out-of-pocket expenses incurred in providing any cooperation requested by InAppBI.
7.2 Indemnification Process. If Indemnified Software is, or in the opinion of InAppBI may become, the subject of any claim or suit for infringement of any Intellectual Property Rights, or if required by settlement, InAppBI at its expense and option may: (a) procure for Customer the right to continue using the Indemnified Software or affected part; (b) replace the Indemnified Software or affected part with software of equivalent functionality; (c) modify the Indemnified Software or affected part to make it non-infringing while providing equivalent functionality; or (d) if InAppBI determines that none of the foregoing remedies are commercially feasible, refund the fees Customer paid for the Indemnified Software for periods during which Customer is unable to use the Indemnified Software due to such claim, suit or settlement.
7.3 Indemnification Exclusions. InAppBI shall not have any obligation under this Section 7 to the extent a claim is based upon (a) use of any version of Indemnified Software other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof; (b) combination, operation or use of Indemnified Software with software not supplied by InAppBI; (c) use of the Product in violation of this Agreement; or (d) modifications made by InAppBI to the Product at the Customer’s request.
7.4 ENTIRE LIABILITY. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF InAppBI AND ITS LICENSORS AS WELL AS CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT CLAIM BY A THIRD PARTY.
8. LIMITATION OF WARRANTIES AND LIABILITIES.
8.1 NO INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF InAppBI AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 LIMIT ON DIRECT DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO InAppBI DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
8.3 Allocation of Risk. The provisions of this Agreement fairly allocate the risks between InAppBI, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that InAppBI would not enter into this Agreement without such allocation and limitation.
9.1 Termination for Breach. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
9.2 Effect of Termination. Immediately on termination of this Agreement, Customer shall cease all use of the Software. Within 10 business days following the termination date Customer shall return to InAppBI or destroy (and certify to InAppBI in writing as to such destruction) all copies of the Software and Documentation and any other materials embodying the Products.
9.3 Survival. Sections 2.5 through 2.7 and 4 through 12 of this Agreement shall survive any termination of this Agreement.
Customer agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. Customer represents and warrants that it is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which InAppBI is prohibited from doing business.
11. U.S. GOVERNMENT RIGHTS.
11.1 The Software, and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to InAppBI and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government’s right to use, reproduce or disclose the Software and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Software and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the government rights greater than, or additional to those, set forth in this Agreement.
12.1 Integration. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by InAppBI in lieu of or in addition to InAppBI’s Order Form, Customer’s purchase order shall be binding only as to the following terms: (a) the Products and Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
12.2 Assignment. This Agreement is personal to the Customer originally licensed and may not be assigned, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void.
12.3 Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
12.4 Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
12.5 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in Santa Cruz, California, U.S.A., and the parties agree to the exercise of jurisdiction by a state or federal court in such counties. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
12.6 Notices. All notices under this Agreement shall be sent in writing and shall be delivered by (a) personal hand delivery, (b) first class mail with return receipt, (c) overnight mail by recognized commercial carrier with tracking receipt, or (d) confirmed email or fax and copied by one of the methods described in (a), (b) or (c) above, to the address first listed above or to such other address that has been properly noticed.
12.7 No Agency Relationship. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Customer and InAppBI.
12.8 Open Source Notice. InAppBI may distribute third party open source software programs with the Software either incorporated into the Software or provided separately. These third party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any Customer information. A list of open source software programs delivered with the Software can be found in the readme.txt file in the Documentation.
12.9 Customer Identification. Customer agrees that InAppBI may identify customer as a user of InAppBI products and may use Customer’s name and logo in InAppBI’s customer list, press releases, blog posts, advertisements, and website.
12.10 Customer Story. Customer agrees to participate in the following co-marketing activities: press release (upon launch or other agreed-upon milestone), case study and video testimonial. Customer also agrees to consider InAppBI-sponsored and industry webinar and speaking engagements as may be invited by InAppBI - the participation, timing and content of which to be mutually agreed upon between Parties.
Jumpstart Service Description
The objective of the Jumpstart Service is to help the customer rapidly learn to use the InAppBI System. InAppBI will assign a consultant to assess the customer’s needs, then consult, train and in some cases co-develop with the Customer’s Model owner.
InAppBI will provide subject matter expertise, working under the direction of Customer project managers and technical staff, as part of Customer project teams. InAppBI consultants will work to ensure the best application of InAppBI technology within these projects. Assistance and mentoring within and across project teams will be a priority of the InAppBI consultants in this engagement. This will include not just guidance, but also hands-on work in designing, developing, testing and deploying applications using InAppBI technology as part of the Customer’s solution footprint.
The Jumpstart Service is delivered remotely.
Scope of Work
The scope of the Jumpstart Service is limited to the elements listed above. Should Customer wish to expand the engagement, InAppBI will create a separate Statement of Work (“SOW”) to outline the process, timeline and requirements for the additional configuration Services. InAppBI will provide the Services specified in the SOW on a Time and Materials basis.
Travel and Expense
It is expected that the Jumpstart Service will be delivered remotely. For any agreed upon on-site work, Customer will reimburse out-of-pocket expenses (“Other Costs”) incurred in the performance of the Services. Out-of-pocket expenses shall include airfare, lodging, meals, ground transportation as well as all other travel related expenses. InAppBI will make reasonable efforts to use travel services such as corporate air and hotel rates as requested by Customer. InAppBI shall obtain Customer’s written approval prior to incurring any such expenses. Customer will provide a Purchase Order (or similar) for invoices.
InAppBI shall invoice Customer for Labor and Other Costs on a monthly basis and will provide supporting documentation as requested. All payments shall be due within thirty (30) days of InAppBI’s invoice.
InAppBI CUSTOMER SUPPORT PROGRAM
InAppBI Customer Support Program provides technical assistance for the InAppBI Software, access to the InAppBI Documentation website and releases for Software.
2. CUSTOMER SUPPORT
Technical Assistance. InAppBI’s Customer Support staff provides technical assistance to support the administration of InAppBI Products. Customer Support does not include training.
Language of Support. Unless specific arrangements are made in writing in advance, all customer support will be provided by InAppBI in English.
Scope of Support. InAppBI is not obligated to provide technical assistance if (a) the Software has not been used in a manner consistent with its documentation; (b) a non-InAppBI system on which Software is installed is not functioning properly or doesn’t meet InAppBI’s published specifications; (c) Software has been altered or modified by any party other than InAppBI; (d) Customer has not installed an upgrade, update or patch that InAppBI has recommended and made available; (e) InAppBI is not able, after commercially reasonable efforts, to replicate any error or problem in the Software within the InAppBI Support laboratory environment. InAppBI does not provide support for third-party software or hardware.
3. ISSUE REPORTING
Issue Severity and Prioritization. The Customer should determine the severity of a support issue based on the following classifications:
InAppBI may reclassify the priority level upward or downward and modify the order, classifications and method of responding to and/or addressing such issues, if any, at any time. Customer will be able to contact InAppBI support team by emailing to firstname.lastname@example.org.
4. SOFTWARE UPDATES
During the term of the Customer Support Plan, InAppBI will notify the Customer of new Software releases if and when they are made available. Software releases include Software version updates, maintenance releases, and patches.
For Hosted Model, InAppBI will perform upgrade releases during designated upgrade windows. For License Model, Customer will be alerted via email of new releases available for download or additionally will be made available by contacting customer support directly during designated support hours.
Software updates do not include products or features sold separately or new products and features that InAppBI may develop and release for additional fees. Customer may add such new functionality and/or features to the Services that it subscribes to upon payment of the additional fees. Customer agrees that its subscription license of is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by InAppBI with respect to future functionality or features.