ISIMA Software as a Service Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE
USING THE ISIMA SOFTWARE. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS
AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
This Isima Software as a Service Agreement (this “Agreement”) was last updated on September 17, 2019. It is effective between You (“You” or “Customer’) and ElasticFlash Inc (DBA Isima, Inc.), a Delaware corporation with a principal place of business at 2000 University Avenue, Suite 610, East Palo Alto, CA 94303 (“Provider”) as of the date You accepted this Agreement (the “Effective Date”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
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(b) ”Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) ”Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. The customer date does not include Enrichment Data.
(d) ”Documentation” means the standard user documentation for the Software that Provider makes generally available to its customers.
(e)”Enrichment Data” means the data we make available to you as part of the Services. Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third party sources and our internal data processes provided from Customer Data.
(f) ”Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data.
(g) ”Services” means the software-as-a-service offering described in the Order Form.
(h) ”Order Form” means the form of the document by which Customer orders subscriptions for usage. The Order Form will specify the scope of the subscriptions purchased by Customer, including (a) production or non-production use; (b) usage limits; and/or (c) any other applicable license parameters. Access is free until you exceed a peak load 100 events per second or 60 days from the Effective Date. An Order Form is not needed until the free access period has ended. Any customer not paying for Services is considered a free or non paying Customer.
- Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other rights, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized End User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Provider’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; or (F) At the discretion of the Provider if the customer is a non paying Customer; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. The provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Retrieval of Customer Data. For our paid subscriptions, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the account, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
For our free subscriptions, we will not provide you with any access to Customer Data after the termination or expiration of your subscription.
- Customer Responsibilities.
(a) General. The customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, the Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by the Customer will be deemed a breach of this Agreement by Customer. The customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to HERE. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
- Service Levels and Support.
- Support Services. The access rights granted hereunder entitles Customer to the support services described on Exhibit B. Provider reserves the right to amend Exhibit B once for each one (1) year renewal period; provided, however, that Provider provides written notice to Customer of such amended Exhibit B at least sixty (60) days prior to the last day of the then-current term.
- Professional Services. Provider may provide Customer with software development services, subject to Provider’s acceptance of an applicable Order Form, Customer’s payment of the fees applicable at the time Customer requests such Professional Services, and the parties’ entry into a separate agreement governing such Professional Services.
- Fees and Payment.
(a) Fees. Customer shall pay Provider the fees (”Fees”) as set forth in the applicable Order Form without offset or deduction once the free access period has ended. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s and it’s Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. As outlined in Order Form, Subscription fees are based on the number of events per second with an average event size of 1Kb and/or actual storage used. If the limits set for the number of events and/or actual storage is exceeded, Provider will adjust the amount of fees due and payable by Customer in accordance with the fee schedule set forth in the Order Form, and Customer will pay the adjusted amount of fees in accordance with the Order Form. Any such fee adjustment shall be made on a pro-rated basis based on the number of days remaining in the then-current subscription period.
(b) Taxes. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes, duties, levies, tariffs, or other governmental charges (including but not limited to VAT) (together, “Taxes”), other than any deductions which Customer is required by the applicable law to make. Customer will be responsible for, and will promptly pay, all Taxes associated with this Agreement and Customer’s receipt or use of the Software, Support Services, and/or Professional Services, except for taxes based on Provider’s net income. If the Provider is required to collect any taxes for which Customer is responsible, the Customer will pay such Taxes directly to Provider. If Customer pays any withholding Taxes that are required to be paid under applicable law, Customer will furnish Provider with written documentation of all such payments of Taxes, including receipts.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
- Limited Warranty and Warranty Disclaimer.
- Mutual Warranties. Each party represents and warrants to the other party that: (i) it has the necessary power, right, and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) its entry into and performance of this Agreement shall not cause any conflict with any agreement with any third party to which it is bound.
- Software Performance Warranty. Provider warrants that the Software will operate in substantial conformity with the then-current version of the Documentation and all applicable specifications and materials provided to Customer before or after the Effective Date. In case of breach of such warranty, Provider’s entire liability, and Customer’s sole and exclusive remedy, will be for Provider to remedy the functionality at issue, provided that if Provider does not remedy such functionality issue within fifteen (15) days of written notice from Customer, Customer shall be entitled to terminate this Agreement upon written notice to Provider and to receive a refund of all prepaid but unused fees paid in connection with the Software (and, if the breach of the warranty occurred during the six (6) month period following the Effective Date, a refund of all fees paid for Professional Services under the Professional Services Agreement).
- Representations and Warranties. Provider represents and warrants to Customer that: (i) the Software does not and will not contain any (1) program routine, device or other feature or hidden file, including any time bomb, virus, software lock, Trojan horse, drop-dead device, worm, malicious logic or trap door, that may delete, disable, deactivate, interfere with or otherwise harm any software, hardware, or data, or (2) hardware-limiting, software-limiting or services-limiting function (including any key, node lock, time-out or other similar functions), whether implemented by electronic or other means; (ii) the Software is the original work of Provider and its licensors and the use of the Software by Customer will not infringe the Intellectual Property Rights of any third party; and (iii) Customer’s use of the Software will not, pursuant to the terms of any open source license applicable to the Software, require Customer to make available any source code to any third party or otherwise create any encumbrance on any Intellectual Property Rights of Customer.
- Disclaimer. Except as set forth herein, Provider will have no liability for any claims, losses, or damage caused by Customer’s or any Authorized User’s use of any third-party products, software, services, or websites accessed via the Software. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE AND SUPPORT SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. PROVIDER FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES PROVIDED BY PROVIDER TO CUSTOMER AS TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
(a) Provider Indemnification.
- Provider shall indemnify, defend, and hold harmless any paying Customer and its officers, directors, employees, Authorized Users and agents from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or related to any third party claim that the use of the Software, as contemplated herein, infringes or misappropriates the Intellectual Property Rights of any third party. If any injunction or restraining order is issued, Provider will, at its expense: (a) obtain for Customer the right to continue to use the Software; (b) replace or modify the Software to make non-infringing; or (c) if such remedies are not reasonably available, terminate Customer’s rights and Provider’s obligations under this Agreement with respect to the Software and refund to Customer any fees paid prior to the date of termination. Provider will have no obligation to defend or indemnify Customer to the extent that a claim is based on (i) modification of the Software by Customer if the claim would not have occurred but for such modification; or (ii) combination, operation, or use of the Software with Customer’s or a third party’s applications, software, or systems in a manner expressly prohibited by the terms of the Agreement, if a claim would not have occurred but for such combination, operation, or use; or (iii) use of the Software in a manner prohibited by the terms of this Agreement, if the claim would not have occurred but for such use.
- Providers’s indemnity obligations are contingent upon the paying Customer: (a) promptly notifying Provider in writing of the claim (provided that failure to provide prompt notice excuses Provider’s obligations only to the extent its defense is materially prejudiced by the delay); (b) granting to Provider sole control of the defense and settlement of the claim (provided that Provider will not admit liability by Customer or agree to any settlement which imposes any obligation or restriction on Customer without Customer’s prior written consent); and (c) providing Provider, at Provider’s expense, with all assistance, information, and authority reasonably requested for the defense and settlement of the claim.
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(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 9 EXCEED THE ANNUAL AMOUNT paid FOR THE CONTRACT.
- Limitations of Liability.
10.1 Exclusion of Damages. OTHER THAN WITH RESPECT TO SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE OR SUPPORT SERVICES PROVIDED BY EF TO CUSTOMER, WHETHER SUCH CLAIM FOR RECOVERY IS BASED UPON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2 Total Liability. EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY AND ANY THIRD PARTY FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY (OTHER THAN INDEMNIFICATION OBLIGATIONS AND BREACH OF CONFIDENTIALITY) WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one year from such date (the “[Initial] Term”). This Agreement will automatically renew for up to three additional successive one year term[s] unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other party written notice of non-renewal at least thirty days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
- Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than (30) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
- Either party may terminate this Agreement upon written notice to the other party for material breach if such breach remains uncured for thirty (30) days after receipt of written notice specifying the grounds for the breach.
- Customer has the right to terminate this Agreement, for any reason or for no reason, upon thirty (30) days prior written notice to Provider provided on or at any time prior to the six (6) month anniversary of the Effective Date, provided that such termination shall not be effective prior to such six (6) month anniversary.
- Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of a law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York and the parties irrevocably consent to the personal jurisdiction and venue therein.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Non-Solicit. During the Term and for a period of twelve (12) months afterward, neither party will directly solicit as an employee or independent contractor any of the other party’s employees or contractors with which the first party came into contact with in connection with this Agreement. The foregoing shall not restrict either party from engaging in any manner with any person who initiates contact with such party regarding an employee or contractor relationship, nor shall it restrict either party with respect to general solicitations (e.g, posting job openings on publicly available websites).
(l) Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by Provider to Customer are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101(56) of the Bankruptcy Code. The parties agree that Customer, as the licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code.
(m) Use of Logo. Each party shall grant the other permission to use the name and logo in its marketing, sales, financial, and public relations materials.
(n) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
SUPPORT AND SERVICES TERMS AND CONDITIONS
- SCOPE OF COVERAGE. Subject to the terms of this document and Customer’s payment of fees in accordance with the Software as a Service Agreement and applicable Order Forms, Isima will provide maintenance and support services only to a paying Customer for the Software (“Support Services”). For the sake of clarity, non paying customers will not have access to Support Services.
1.1. Severity Levels. Isima will acknowledge and address, as described below, reported and reproducible material errors in the Software that prevent the Software from performing in all material respects in accordance with the Documentation (each an “error or issue”). Isima recognizes four (4) severity levels of Software errors or issues.
(a) Severity 1 – Critical System Impact. The Software suffers an error or issue which cannot be reasonably circumvented and which either (i) prevents Customer from being able to use the Software; or (ii) otherwise so substantially impairs the performance of the Software to effectively render it unusable. Isima will acknowledge any such reported error or issue within two (2) hours during Isima’s normal business hours (Monday through Friday, 8 a.m. to 6 p.m. Pacific Time, excluding holidays), and, if Customer is using the Software in production, will work 24 hours a day, 7 days a week to address and remedy such error or issue. In the event that Isima is unable to resolve a Severity 1 error or issue within five (5) business days after Customer reports such error or issue, Customer may terminate the Agreement and receive a refund of the subscription fees prepaid but unused by Customer (and, if the error or issue occurred during the six (6) month period following the Effective date, a refund of all fees paid for Professional Services under the Professional Services Agreement) and no further fees will be payable by Customer hereunder.
(b) Severity 2 – Serious System Impact. The Software suffers an error or issue (which is not of Severity 1) which cannot be reasonably circumvented and which substantially impairs or degrades the use of one or more portions or features of the Software required by Customer to perform necessary functions, but some or all Authorized Users can still use partial functionality. Isima will acknowledge any such reported error or issue within four (4) hours during Isima’s normal business hours (Monday through Friday, 8 a.m. to 6 p.m. Pacific Time, excluding holidays), and, if Customer is using the Software in production, will work continually to address and remedy such error during Isima’s normal business hours. In the event that Isima is unable to resolve a Severity 2 error or issue within ten (10) business days after Customer reports such error or issue, Customer may terminate the Agreement and receive a refund of the subscription fees prepaid but unused by Customer (and, if the error or issue occurred during the six (6) month period following the Effective date, a refund of all fees paid for Professional Services under the Professional Services Agreement) and no further fees will be payable by Customer hereunder.
(c) Severity 3 – Moderate System Impact. The Software suffers an error or issue (which is not of Severity 1 or Severity 2) that impairs the use of one or more portions or features of the Software, but the reported error or issue can be reasonably circumvented and most operations of the Software continue to function normally. Isima will acknowledge any such reported error or issue within one (1) business day and will work during Isima’s normal business hours (Monday through Friday, 8 a.m. to 6 p.m. Pacific Time, excluding holidays) to provide the appropriate resolution.
(d) Severity 4 – Marginal System Impact. The Software suffers an error or issue (which is not of Severity 1, Severity 2, or Severity 3) that has little or no impact on the Software, but Customer requires assistance or advice to use the Software. Isima will acknowledge any such reported error or issue within five (5) business days and will work during Isima’s normal business hours (Monday through Friday, 8 a.m. to 6 p.m. Pacific Time, excluding holidays) to provide the appropriate resolution.
1.2 Problem Reporting. Customer may report errors or issues in the Software by email to support@Isima.io. Prior to submitting an error report, the Customer will make all reasonable efforts to resolve the problem without assistance from Isima, will attempt to reproduce any problems reported to Customer by Authorized Users, and will report only reproducible problems.
1.3 Resolution. Except as otherwise expressly set forth herein, Isima will use commercially reasonable efforts to resolve each reported error or issue that is found by Isima to be due to a defect or effort in the Software by providing:
- a reasonable workaround, which may consist of specific administrative steps or alternative programming calls; and
- an object code patch to the Software that resolves such error or issue without materially and adversely affecting performance or functionality.
If Isima credibly demonstrates to Customer that a problem reported by Customer is not due to a problem or error in the Software, Customer may instruct Isima (i) to proceed with problem determination and resolution subject to the terms and conditions of Isima’s Professional Services Agreement, including payment by Customer of Isima’s then-current, standard professional services rates of $250 per hour and reasonable and customary out-of-pocket travel and lodging expenses; or (ii) not to proceed with problem determination. For the avoidance of doubt, the Customer will pay for any work performed by Isima, at the professional services rates set forth in the Order Form, to investigate and resolve a problem that Isima can document was not a problem, error, or issue in the Software.
Customer acknowledges that in order to perform Support Services, Isima may require access to and a copy of code in Customer’s possession (or that of Customer’s system integrator or consultants) relating to the Software or which may impact the performance of the Software. The customer agrees to provide access, assistance, and information to Isima as required to resolve errors or issues with the Software. Anything provided to Isima in connection with the foregoing constitutes Customer’s Confidential Information.
1.4 Available Updates. At no additional cost to Customer, Isima will provide and install bug fixes, maintenance releases, and major releases for the Software (collectively, “Updates”), which will thereafter be considered “Software” for purposes of the Agreement. At its expense and as deemed appropriate by Isima in its sole discretion, Isima will furnish Customer with revised Documentation (including release notes identifying each change) with each Update.
1.5 Other Errors and Issues. If Customer reports an error or issue with the Software that is not of Severity 1, 2, 3, or 4, Isima shall use commercially reasonable efforts to acknowledge such error or issue. If Customer reports an error or issue with the Software that is not of Severity 1, 2, 3, or 4 and that is scheduled by Isima to be addressed in a later Update, Isima may address such error or issue in such Update. The customer agrees to pay Isima at Isima’s then-current, standard rates for all effort expended towards resolution of any error or issue which is later determined to result from any cause other than an error or issue in the Software.
1.6 Lines of Support. Isima shall maintain the organization and processes necessary to provide full support for the Software to Customer. With respect to errors and issues with the Software, such support shall be provided to Customer only if Customer first uses commercially reasonable efforts to confirm that the error or issue relates to the Software and not other software or hardware used by Customer. Support will be provided to up to two (2) designated and trained representatives of Customer. Isima shall have no obligation to provide support directly to any of Customer’s other Authorized Users. In order to assist Isima in providing such support, Customer will provide Isima with the ability to access the Software’s logs and configuration information and provide assistance to Isima in order to facilitate Isima’s use of remote administration tools relating to the Software. Support will be provided primarily through web-based support services and secondarily through telephone support. As of the Effective Date, Isima’s normal business hours are Monday through Friday, 8 a.m. to 6 p.m. Pacific Time.
- EXCLUSIONS. Support Services do not include, nor will Isima be obligated to provide, services required as a result of: (a) any use of the Software on a system that does not meet Isima’s minimum standards for such as set forth in the applicable Documentation; or (b) any error caused by Customer’s or any third party’s negligence, abuse, misapplication, or use of Software other than as expressly permitted under the Agreement.
- 3. WARRANTY.
3.1 Limited Warranty. Isima represents and warrants that the Support Services provided hereunder shall be provided in a professional and workmanlike manner; provided, however, that Customer’s sole and exclusive remedy and Isima’s sole and exclusive obligation for a breach of the foregoing warranty shall be for Isima to re-perform such Support Services in accordance with the foregoing warranty and, if such re-performance fails to comply with such warranty, for Customer to terminate the Agreement and receive a refund of all prepaid but unused fees paid hereunder.
3.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL DELIVERABLES AND SERVICES PROVIDED BY LICENSOR PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS,” AND ISIMA AND ITS SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT ISIMA IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSON OR ENTITY OTHER THAN ISIMA, INCLUDING ITEMS SUPPLIED OR SERVICES PERFORMED BY CUSTOMER.