iFusion Analytics
Software-as-a-solution (SaaS) Agreement
 

TERMS OF SERVICE

This software-as-a-solution (SaaS) Agreement (“Agreement”) by Innominds Software Inc., a California corporation having its principal place of business at 2055 Junction Ave #122, San Jose, CA 95131 (“Software Provider”) will enable a client (a user of this SaaS service) to access to and use of iFusion Analytics cloud based software-as-a-service offering(s) identified in the applicable Service Level Agreement (each a “Hosted Service” and collectively, the “Hosted Service”). Each “Hosted Service” product will be deemed to include updated versions of same which are made available to Customer as part of maintenance and support services. The Service Level Agreement will be: (a) used by Customer to order such Hosted Service; (b) executed by the Customer and Solution Provider (or one of its authorized resellers, if any); and (c) subject to this Agreement. The Service Level Agreement together with this Agreement forms a binding contract between Customer and Solution Provider.

Any “service specific” details relating to the SaaS service will be entered between Innominds and the customer separately.

  1. Definitions

    1.1 “Administrator(s)” means the User(s) designated by Customer who are responsible for administering the Hosted Service and who are issued an Administrator login by Solution Provider.

    1.2 “Affiliates” means any entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting equity ownership.

    1.3 “Agreement” means these terms and conditions, together with any and all Service Level Agreement referencing these terms and conditions, the Schedules attached hereto and any other statements of work or exhibits.

    1.4 “Customer” means the customer entity that has executed an Service Level Agreement with Solution Provider.

    1.5 “Customer Data” means all electronic data or information submitted by Customer or its Affiliates to and stored by the Hosted Service.

    1.6 “Documentation” means the reference, administrative, and user manuals which are published by Solution Provider and provided by Solution Provider to Customer with the Hosted Service, which may be updated from time-to-time but excluding any sales or marketing materials.

    1.7 “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Hosted Service.

    1.8 “Initial Term” means the initial subscription term specified in the applicable Service Level Agreement, excluding any renewals terms.

    1.9 “Service Level Agreement” means an agreement for initial purchase, add-on purchase or renewal in the name of and executed by Customer and accepted by Solution Provider which specifies the Hosted Service and professional services to be provided by Solution Provider subject to the terms of this Agreement.

    1.10 “Solution Provider” means Solution Provider, or one of its Affiliates if such Affiliate executes a Service Level Agreement with Customer in its own capacity.

    1.11 “Term” means the Initial Term specified in the applicable Service Level Agreement and any renewal terms.

    1.12 “Third Party Applications” means online, Web-based applications or services and offline software products that are provided by third parties, and interoperate with the Hosted Service.

    1.13 “Users” means individuals who are authorized by Customer to use the Hosted Service, for whom subscriptions to a Hosted Service have been purchased on a Service Level Agreement.

    1.14 “Product” means iFusion Analytics Software Product from Innominds.

    1.15 “Algorithms” means the analytics software / statistical method used to generate advanced analytics. Algorithms are to be used to prepare data, train a data model and predict or prescribe outcomes

    1.16 “Software” means the IFusion Analytics software products in object code form specified in an Order Form. “Software” shall also include any support & maintenance releases to the Software product provided to or purchased by Licensee under this Agreement. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”. The Software will be used to provide Solution to the Customer.

  2. General Terms of Access to the Hosted Service

    2.1 License. Subject to the terms of this Agreement and payment of the applicable fees, Software Provider grants to Customer during the Term a nonexclusive, nontransferable, license to permit Users to use the Hosted Service in accordance with the use parameters, pricing, and payment terms described in this Agreement and the applicable Service Level Agreement solely for Customer’s own internal business purposes, and in accordance with the terms and conditions of this Agreement.

    2.2 Customer Must Have Internet Access. DSL, cable or another high-speed Internet connection is required for proper transmission of the Hosted Service. Customer is responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect the Customer network to the Hosted Service, including, but not limited to, “browser” software that supports protocols utilized by the Hosted Service. Software Provider assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Software Provider.

    2.3 Accuracy of Customer’s Contact Information. Customer shall provide Software Provider with accurate, current and complete information on Customer’s legal business name, address, e-mail address, and phone number, and throughout the Term maintain and promptly update this information if it should change.

    2.4 Users: Passwords, Access, and Notification. Customer, through its Administrator, shall authorize access to and assign unique passwords and user names up to the number of Users purchased by Customer on the Service Level Agreement. User logins are for designated Users and cannot be shared or used by more than one User. Any User login may be reassigned to another currently employed User as needed during the current annual period. Regardless of the length of the Term, unused or vacant User logins expire at the end of each annual period. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Service and shall promptly notify Software Provider of any unauthorized access or use of the Hosted Service and any loss or theft or unauthorized use of any User’s password or name and/or Hosted Service account numbers.

    2.5 Use of the Hosted Service. Customer is responsible for all activities conducted by its Users, its Users’ Electronic Communications and for its Users’ compliance with this Agreement, including the content of all Customer Data.

    2.6 Security. Software Provider shall maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. 2.7 Support and Maintenance. Software Provider shall provide support and maintenance as per the terms provided in Exhibit-A.

  3. Confidentiality

    3.1 Confidential Information. For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Hosted Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which:

    1. is known publicly;
    2. is generally known in the industry before disclosure;
    3. has become known publicly, without fault of the Receiving Party;
    4. the Receiving Party becomes aware of from a third party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party;
    5. is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or
    6. is aggregate data regarding use of Software Provider’s products and services that does not contain any personally identifiable or Customer-specific information.

     

    3.2 Non-Disclosure Obligations. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.

  4. Ownership of Customer Data

    As between Software Provider and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer, provided that in the event Software Provider aggregates and/or anonymizes Customer Data resulting from Customer’s use of any Hosted Service and aggregates such Customer Data with that of other customers in a way that does not reveal Customer’s identity or personally identifiable information, Software Provider may use such aggregated and/or anonymized Customer Data in the manner and for such purposes as are set forth in Software Provider’ Privacy Policy.

  5. Payment Terms—Taxes

    5.1 In consideration of the right to use the Hosted Service(s) and any associated professional services, Customer will pay the fees specified in the applicable Service Level Agreement within 30 days of receipt of invoice (“Fees”). unless provided otherwise in the Service Level Agreement. All amounts are payable in U.S. dollars. Payments which are more than 30 days late will incur interest at the rate of one and one-half percent (1 1/2%) per month or the maximum allowed by law, whichever is less, on such delinquent amount from the due date thereof until the date of payment. To the extent that Customer disputes any invoice on the basis of an alleged error in such invoice, Customer must raise such dispute specifically in writing to Software Provider within sixty (60) days of the invoice date, otherwise any such dispute will be waived. Customer will remain responsible for the payment of those portions of an invoice that are not subject to such dispute.

    5.2. Taxes. All Fees payable under the applicable Service Level Agreement are exclusive of and do not include taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s receipt or use of the Hosted Service, excluding taxes based on Software Provider’s gross or net income. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide Software Provider with any required documentation to verify its tax-exempt status with the applicable taxing authorities.

  6. Warranties

    6.1 Warranty of Functionality. Software Provider warrants that the Hosted Service will achieve in all material respects the functionality described in the Documentation applicable to the Hosted Service purchased by Customer.

    6.2 No Virus Warranty. Software Provider warrants that the Hosted Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for (i) any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer or its Users, and (ii) any Malicious Code contained in any Third Party Applications.

    6.3 Disclaimer. EXCEPT AS STATED IN SECTIONS 2 AND 6 OF THIS AGREEMENT, Software Provider DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE HOSTED SERVICE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR THAT THE OVERALL SYSTEM OUTSIDE OF SOFTWARE PROVIDER’S OWNERSHIP AND/OR CONTROL THAT MAKES THE HOSTED SERVICE AVAILABLE (THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION 6 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SOFTWARE PROVIDER. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

  7. Limitations of Liability

    7.1 CUSTOMER AGREES THAT THE CONSIDERATION WHICH SOFTWARE PROVIDER IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY SOFTWARE PROVIDER OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW).

    7.2 EXCEPT WITH REGARD TO AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OR OTHER DEPLOYMENT OF THE HOSTED SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF 12 MONTHS IN SUBSCRIPTION FEES FOR THE HOSTED SERVICE THAT IS THE SUBJECT OF THE CLAIM.

    7.3 THE PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE HOSTED SERVICE TO CUSTOMER.

  8. Termination

    Termination With or Without Cause, Expiration. Software Provider may terminate this Agreement at any time, in whole or in part, for any reason, upon notice to Customer. Customer may terminate this Agreement at any time, in whole or in part, for any reason, provided that Customer shall pay any fees accrued prior to the date of termination, and, in the case of annual contracts billed monthly, an early termination fee equal to one (1) time the monthly fee for one year contract, two (2) times the monthly fee for two years contact and three (3) times the monthly fee for three years and above contract specified in the applicable Service Level Agreement. In addition, either party may immediately terminate this Agreement and any applicable Service Level Agreement issued hereunder in the event the other party commits a material breach of any provision of this Agreement that is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed material breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement for any reason, Customer shall have no rights to continue use of the Hosted Service. If this Agreement is terminated as a result of Customer’s material breach of the Agreement, then Software Provider shall be entitled to all of the Fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Software Provider’s material breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any prepaid subscription fees paid by Customer to Software Provider under this Agreement for the remaining terminated portion of the Term.

  9. Return of Customer Data

    Customer agrees that following the termination or expiration of this Agreement, Software Provider may immediately deactivate Customer’s account and access to the Hosted Service and that following a reasonable period of time (but not less than ninety (90) days) shall be entitled to delete Customer’s account and data from Software Provider’s servers. Within 90 days of termination of this Agreement, customer may choose to copy the customer data and any analytics output into their local storage, and customer has to bear the cloud provider costs of copying the data and analytics output. Customer further agrees that Software Provider shall not be liable to Customer nor to any third party for deletion of Customer Data, provided that Software Provider is in compliance with the terms of this Section.

  10. Customer Responsibilities

    Customer and its Users will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Hosted Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer will not:

    1. Sell, lease, license or sublicense the Hosted Service;
    2. introduce into or transmit through the Hosted Service any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs;
    3. transmit or store infringing material in the Hosted Service;
    4. send any Electronic Communication from the Hosted Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Hosted Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Hosted Service by any means other than through the interfaces that are provided by Software Provider. Customer shall not do any “mirroring” or “framing” of any part of the Hosted Service, or create Internet links to the Hosted Service which include log-in information, user names, passwords, and/or secure cookies.
  11. Transmission of Data

    The Hosted Service allows Customer to send Electronic Communications directly to Software Provider and to third parties. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Hosted Service. Customer expressly consents to Software Provider’s receipt and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Software Provider. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Software Provider uses encryption in various locations and methodologies within the Hosted Service and the infrastructure working behind it. Customer Data is encrypted while in transit to and from the Hosted Service; however Software Provider is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by Software Provider, including but not limited to, the Internet and Customer’s local network.

  12. Implementation

    Implementation and training services ordered by Customer as set forth in the applicable Service Level Agreement will be performed in accordance with Software Provider’s customary practices for the level of services purchased. Software Provider does not provide dedicated project management for Customer during implementation unless separately purchased. Implementation is performed remotely unless otherwise specified. Software Provider is not responsible, and will not be liable, for Customer’s configuration decisions or the Hosted Service’s ability to allow Customer to comply with all laws and regulations in Customer’s unique circumstances, nor for any delays in implementation caused by Customer, including but not limited to, Customer delays in providing clean and validated data, if needed, or Customer delays in making necessary business decisions with respect to the configuration of the Hosted Service.

  13. Third Party Web Sites, Products and Hosted Services

    Software Provider or third-party providers may offer Third Party Applications and related services to Customer hereunder. Customer acknowledges and understands that the use of such Third-Party Applications or services shall be subject to separate terms and conditions as set forth on an Service Level Agreement or as otherwise provided to Customer. Except as expressly set forth in the Service Level Agreement, Software Provider does not warrant any such Third-Party Applications or services. If Customer installs or enables Third Party Applications or services for use with the Hosted Service, Customer agrees that Software Provider may allow such third-party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Hosted Service, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. Finally, the continuing availability of the Third-Party Application is subject to the continued effectiveness and terms of the contract between Software Provider and the third party provider.

  14. Software Provider Intellectual Property Rights

    Customer agrees that all rights, title and interest in and to all intellectual property rights in the Hosted Service and Documentation (including all updates, enhancements and derivative works thereof and thereto) are owned exclusively by Software Provider or its licensors. Except as provided in this Agreement, the time- limited access license, in the nature of a subscription, granted to Customer does not convey any rights in the Hosted Service, express or implied, or ownership in the Hosted Service or any intellectual property rights thereto. In addition, Software Provider shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Hosted Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Hosted Service. Any rights not expressly granted herein are reserved by Software Provider. Software Provider service marks and trademarks, logos and product and service names are marks of Software Provider (the “Software Provider Marks”). Customer agrees not to display or use the Software Provider Marks in any manner without Software Provider’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party who may own the Mark.

  15. Indemnification

    15.1 Customer’s Indemnity. Customer agrees, at its expense, to indemnify, defend and hold harmless Software Provider, its licensors and their respective directors, officers, employees and agents from and against all demands, liabilities, losses, claims and expenses, including but not limited to attorneys’ fees and disbursements, arising out of (i) Customer’s or any authorized or unauthorized third party’s use of any Hosted Service, (ii) third party claims, actions or allegations of infringement based on information, data or content Customer submitted in connection with any Hosted Service, (iii) any fraud or manipulation, or other breach of this Agreement by Customer, (iv) third party claims, actions or allegations brought against Software Provider arising out of Customer’s use of any Hosted Service or the Software Provider website, or (v) for any claim whatsoever resulting from Customer or its affiliates’, employees’, contractors’ or agents’ breach of the Children’s Online Privacy Protection Act (COPPA) or the Health Insurance Portability and Accountability Act (HIPAA) or any other state or federal medical privacy or electronic privacy laws. Software Provider reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer.

    15.2 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 15, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 15 are expressly conditioned upon the indemnified party’s compliance with this Section 15.2. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.

  16. Suspension; Discontinuation of the Hosted Service

    16.1 Suspension for Delinquent Account. Software Provider reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Hosted Service for any accounts for which any payment is due but unpaid but only after Software Provider has provided Customer at least two (2) delinquency notices, and at least forty-five (45) days have passed since the transmission of the first notice. Customer agrees that Software Provider shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Hosted Service pursuant to this Section. >>RAO>> Software Provider removes its software from the cloud and stops the services after 2 delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice

    16.2 Suspension for Ongoing Harm. Customer agrees that Software Provider may with reasonably contemporaneous telephonic or electronic notice to Customer suspend access to the Hosted Service if Software Provider reasonably concludes that Customer’s use of the Hosted Service: (i) is being used to engage in denial of service attacks, spamming, or illegal activity; or (ii) is causing immediate, material and ongoing harm to Software Provider or others. In the extraordinary event that Software Provider suspends Customer’s access to the Hosted Service, Software Provider will use commercially reasonable efforts to limit the suspension to the offending portion of the Hosted Service and resolve the issues causing the suspension of Hosted Service. Customer further agrees that Software Provider shall not be liable to Customer nor to any third party for any suspension of the Hosted Service under such circumstances as described in this Section.

  17. Warranty Breach

    Customer’s sole and exclusive remedy for Software Provider’s breach of an express warranty relating to the functionality of the Hosted Service shall be that Software Provider shall be required to use commercially reasonable efforts to modify the Hosted Service to achieve in all material respects the functionality described in the Documentation and if Software Provider is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a prorated refund of any prepaid subscription fees for the remaining terminated portion of the Term. Software Provider shall have no obligation with respect to such a warranty claim unless notified of such claim within six months of the first instance of any material functionality problem.

  18. Governing Law; Dispute Resolution

    1. This Agreement shall be governed by the laws of California.
    2. The parties agree that that they shall use all commercially reasonable endeavors to settle promptly and amicably, by mutual discussion, any disputes, differences, or claims (each a “Dispute”) whatsoever related to this Agreement. The parties agree that that they shall use their best endeavors to settle promptly and amicably. If they are unable to successfully do so within thirty (30) days of their initial discussion or correspondence regarding the Dispute, then a party may notify the other party that it wishes to proceed to arbitration. If this is done, the parties shall proceed to binding arbitration proceedings administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three arbitrators: one selected by each party, and a third selected by the first two. Arbitration would take place in San Jose, California.
    3. Notwithstanding the foregoing, Innominds shall be entitled to seek interim, injunctive and other equitable relief to protect its confidentiality rights, its intellectual property rights and its right to payment under this Agreement in any court worldwide accepting jurisdiction.

    18.1 Legal Fees and Costs. The prevailing party or if there is not one, the substantially prevailing party in any action to enforce this Agreement will be entitled to recover its legal fees and costs (including without limitation its lawyers’ fees and costs), with interest, in connection with any such action.

    18.2 Notices and Reports. Any notice or reports required or permitted hereunder shall be given in writing in English and shall be deemed effectively given to the party to be notified: (a) upon personal delivery to the party; (b) two (2) Business Days following deposit for delivery with an internationally recognized overnight courier; or (c) via confirmed facsimile in which case it shall be deemed received at the date of the transmission as evidenced by a valid receipt of confirmation. “Business Day” means any day which is not a Saturday, Sunday, legal holiday or other day on which banks in London, England are required or authorized by law to be closed. Each party to this Agreement may change its location for notice under this Agreement by giving notice to the other party in accordance with the notice provisions contained in this section.

    18.3 Variations; Waivers. No supplement, modification, variation or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. 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. No provision of any purchase order or other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. No waiver of the terms and conditions of this Agreement, or the failure of either Party strictly to enforce any such term or condition on one or more occasions, will be construed as a waiver of the same or of any other term or condition of this Agreement on any other occasion.

    18.4 Entire Agreement. 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 of this Agreement.

  19. General Provisions

    19.1 Notices. Notices between the parties will be by personal delivery, overnight delivery, or certified or registered mail, return receipt requested, and will be deemed given upon receipt at the address of the recipient party or ten (10) days after deposit in the mail, or via email with confirmation of receipt. Addresses used will be the ones set forth above or such other address as a party hereto will notify the other in writing.

    19.2 Severability. In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually agreeable valid provision that most closely approximates the intent of the invalid provision.

    19.3 Headings. The headings in this Agreement are for convenience of reference only and have no legal effect.

    19.4 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

    19.5 Assignment. Neither party may assign, transfer, or delegate any of its rights and obligations under this Agreement without the prior written consent of an authorized representative of the other party except a party may assign or transfer all or any portion of its rights or responsibilities under this Agreement by operation of law or otherwise to any other party in connection with a merger, acquisition, reorganization, or a sale of substantially all of its assets without prior notice to the other party. Any assignment in violation of this Agreement will be void and of no force and effect. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

    19.6 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. This Agreement sets forth the Parties’ entire liability and exclusive remedies relating to this Agreement and the Hosted Service provided to Customer under this Agreement.

    19.7 Publicity. Except as permitted by Customer in the applicable Service Level Agreement, Software Provider will not make other use of Customer’s name, logo or trademarks or issue any public announcements or press releases regarding this Agreement without Customer’s prior written consent. However, customer agrees participate time to time in a press release and be a reference to other prospects of the Provider.

    19.8 Force Majeure. Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party’s reasonable control, provided that the nonperforming party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.

    19.9 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement. A signature transmitted via facsimile, scanned original or third-party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement

    19.10 Entire Agreement. This Agreement (including the Schedules hereto) constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. In the event of a conflict between the foregoing terms and conditions and any Schedules to this Agreement, the foregoing terms and conditions will control. The parties agree that in the event Customer utilizes a purchase order, any term therein which purports to modify or supplement the terms of this Agreement will be void with no force or effect. Any provisions necessary to interpret the respective rights and obligations of the parties hereunder will survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration.

    19.11 The Applicable Terms. If Software Provider makes a material change to any applicable contract terms contained in a URL, then Software Provider will notify Customer by either sending an email to the notification email address or posting a notice in the Administrator’s view of Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Software Provider within 30 days after receiving notice of the change. If Customer notifies Software Provider as required, then Customer will remain governed by the URL terms in effect immediately prior to the change until the end of the then current Term for the affected Hosted Service. If the affected Hosted Service is renewed, it will be renewed under Software Provider’s then current URL terms and conditions.

    19.12 Governing Law. This Agreement will be governed by the laws of the State of California, including its rules regarding conflicts of law. Venue for any dispute hereunder will be a court of competent jurisdiction located in Santa Clara County, California, and the parties irrevocably submit to the exclusive jurisdiction of such courts.

Exhibit-A

Product Support & Maintenance

For: Support & Maintenance provided by directly to Customer

For such period as Customer has paid the applicable fee (the "Support Term"), Software Provider shall provide the designated Customer with the Support & Maintenance set forth below. offers two levels of Support, the "Standard" level, which is the default level of Support and "Premium" level, a premium level of Support. Customer must purchase the same level of support for all

  1. Maintenance. During the Support Term, Customer will provide Customer with Major Releases and Minor Releases of the Customer product(s) licensed by Customer ("Maintenance").

    Major Release means major new releases, modifications and/or enhancements to the same Customer product which Licensor generally provides to supported customers and which are designated by a change in the digit(s) to the left of the decimal point of the version number. Major Releases do not include separate or different products marketed by Software Provider under a different name even if such products are compatible with the Software Provider Products.

    Minor Release means code corrections, patches, updates and/or minor version releases of the same Software Provider product which Software Provider generally provides to supported customers and which are designated by a change in the digit(s) to the right of the decimal point of the version number.

  2. Support. During the Support Term, Software Provider will provide Customer with general technical assistance and support regarding Errors in the Software Provider Product as set forth in this Section ("Support").

    2.1 General Support. Software Provider shall provide email support regarding use and deployment of the Software Provider Product and telephone support for Priority 1 Errors only from 8:00 a.m. to 5:00 p.m. Central Standard Time for all North America Customers or 8:00 a.m. to 5:00 p.m Pacific Standard Time on Monday through Friday (excluding published Software Provider’s holidays). In addition, Software Provider shall provide telephone support to Premium level customers for Priority 1 Errors on a 24 hour per day/seven days per week/52 weeks per year basis and telephone support for all other Errors during Software Provider Support Hours.

    2.2 Software Provider Product Errors. Software Provider shall respond to reported Errors in the Software Provider Products as set forth in this section. An "Error" means an error, fault or bug in the Software Provider Products which causes the Software Provider Products to cease operating or to fail to perform in accordance with the Documentation.

    2.2.1 Types of Errors. Errors in the Software Provider Products shall be classified as Priority 1-3 in accordance with the following table:

    Error Classification Table

    Error Level

    Description

    Priority 1

    an Error that renders the Software Provider Products inoperative or causes catastrophic failure in a production environment, including any Error which prevents or severely restricts existing data loading or production data querying processes and results in a significant number of Customer users being unable to access or use the Software Provider Products.

    Priority 2

    an Error that significantly degrades performance of the Software Provider Products or materially restricts Customer's use of the functionality of the Software Provider Products in a production environment.

    Priority 3

    an Error that causes only a minor impact on Customer's use of the Software Provider Products (or an Error which would be a Priority 1 Error or Priority 2 Error if the system experiencing the Error were in a production environment).

     

    2.2.2 Error Reporting: Customer shall designate up to two (2) employees responsible for reporting Errors, and notify Software Provider of the name and contact information of each such individual (which may be changed from time to time by Customer by written notice to Software Provider (each, a "Customer Contact"). Each report of an Error shall include: (i) a telephone number and e-mail address for the Customer Contact; (ii) a preliminary classification of the Priority level of the Error; (iii) a short description of the Error and (iv) any other related technical information requested in any applicable Software Provider reporting form (collectively, the "Error Report"). For standard level service, all Error Reports must be made by email except for Priority 1 Errors, which must be made by telephone. For Premium level service, Error Reports may be made by either telephone or email for all Error levels (except Priority 1 Error Reports, which must be made by telephone).

    2.2.3 Priority Designation. Following receipt of an Error Report, Software Provider support personnel will (a) verify Customer detected Errors, provided that the Errors can be recreated with an unmodified version of the Software Provider Products and (b) determine the severity of the support request and whether the support request is a Priority 1, Priority 2, Priority 3 Error, or not an Error. Software Provider reserves the right to review and change the classification of an Error, provided that Software Provider notifies Customer of the justification for the change. In the event Customer disagrees with a change to an Error classification level made by Software Provider, the parties shall meet by telephone to discuss the issue and if the issue is still not resolved then Customer may appeal the decision through the Escalation Procedure. "Escalation Procedure" means that the issue will be escalated through the following levels: Director of Technical Support, Senior Director of Technical Support, Vice President of Products and then President & Chief Executive Officer of Software Provider.

    2.2.4 Initial Response. Software Provider shall use reasonable commercial efforts to: (i) make an initial response to an Error Report and (ii) assign appropriate technical support personnel to the problem and use reasonable commercial efforts to resolve the Error in accordance with the target response times set forth with respect to such Error Level in the applicable table below. A "Business Day" is from 8:00 a.m. to 5:00 p.m. PST during the days included within Software Provider Support Hours.

    Error Target Response Table – STANDARD SUPPORT

    Error Level

    Initial Response

    Target Feedback

    Target Resolution Activities

    Priority 1

    12 hours

    Every Business Day via email or phone as requested until resolution

    Ongoing reasonable efforts to resolve problem on a 24 hoursl7 days a week basis with a target to provide a workaround or fix within 2 Business Days

    Priority 2

    1 Business Day

    Every 2 Business Days via email until resolution

    Ongoing reasonable efforts during regular business hours to resolve Error. Target to provide a workaround or fix within 15 Business Days

    Priority 3

    1 Business Day

    As Appropriate

    Reasonable commercial efforts resolve problem during regular business hours


    Error Target Response Table – PREMIUM SUPPORT

    Error Level

    Initial Response

    Target Feedback

    Target Resolution Activities

    Priority 1

    2 hours

    Every 8 hours via email or phone as requested until resolution

    Ongoing reasonable efforts to resolve problem on a 24 hoursl7 days a week basis with a target to provide a workaround or fix within 24 hours.

    Priority 2

    8 hours

    Every 1 Business Day via email until resolution

    Ongoing reasonable efforts during regular business hours to resolve Error. Target to provide a workaround or fix within 15 Business Days

    Priority 3

    1 Business Day

    During periodic account reviews

    Reasonable commercial efforts resolve problem during regular business hours

  3. Back Support. Support & Maintenance is provided for the current release of the Software Provider Product and the immediately prior sequential release for a period of twelve (12) months from the date of the current release. Notwithstanding the foregoing, in each case an User shall have at least ninety (90) days to move to a supported release upon discontinuance of support for the release they are using during which period shall continue to provide Support & Maintenance for such release.
  4. Exclusions. The following are excluded from Software Provider ' Support & Maintenance obligations: (i) Software Provider Product that is used on or in conjunction with hardware or software not specified in the Documentation or approved and recommended by Software Provider  in writing; (ii) altered or modified Software Provider Product, unless altered or modified by Software Provider : (iii) defects in the Software Provider Product due to accident, hardware malfunction, abuse or improper use; (iv) subject to Section 4 of this Attachment, any version of the Software Provider Product for which Maintenance services have been discontinued by Software Provider; (v) evaluation software or other software provided at no charge or any third-party open source code provided separately from the Software Provider Products; or (vi) any Professional Services deliverable, unless generally made available to Software Provider’s Support & Maintenance customers at no additional charge for the applicable Software Provider Product.
  5. Renewals. Support & Maintenance shall renew automatically upon each anniversary of the Effective Date, unless either Customer or Software Provider has given the other party thirty (30) days prior written notice of cancellation. The annual renewal fee for Support & Maintenance hereunder shall be the applicable percentage of the aggregate Software Provider Product license fees paid by Customer under this Agreement (including all Service Level Agreements) for the Support & Maintenance level selected by Customer, plus any increases in such renewal fees. Software Provider shall provide Customer with notice of any increase in renewal fees at least sixty (60) days prior to the expiration of the then-current annual maintenance period. Any price increase to the Support & Maintenance renewal fees shall not exceed five percent (5%) per year. If Customer elects not to renew Support & Maintenance for successive terms, in order to bring Customer's Software Provider Product up to date with the then- current Support & Maintenance, Customer may reenroll only upon payment to Software Provider in advance of: (i) the then-applicable annual fee and (ii) the fees which would have been due had Customer remained enrolled during the lapse period.
  6. Professional Services. Software Provider shall provide the number of person-days of professional consulting services (·Professional Services") purchased in the applicable Service Level Agreement. The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of: (i) assistance with Software Provider Products installation, deployment, and usage; and/or (ii) development and/or delivery of additional related Software Provider copyrighted software or code. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to use the Software Provider Products, but Software Provider shall retain all right, title and interest in and to any such work product, code or Software Provider Products and any derivative, enhancement or modification thereof created by Software Provider (or its agents).

Software Provider Backline Support & Maintenance Terms

Backline Support & Maintenance provided by Software Provider to Customer The following terms shall apply in the event that Customer contracts to directly provide Support & Maintenance for the Software Provider Products to a User. In such cases, upon payment by Customer of the applicable Backline Support fee with respect to each supported User, Software Provider shall provide the following Support & Maintenance to Customer as follows:

Software Provider

  1. Definitions:

    Tier 1: means helpline (phone and email) support, which includes problem intake and general guidance in use of major features of the product.

    Tier 2: means next level guidance in the product and problem resolution, including general problem diagnosis, provision of known workarounds and resolutions, further internal escalation and fault ticket filing and communication with Software Provider support as necessary.

    Tier 3: means expert code level assistance in resolving Errors in the Software Provider Products provided by support technicians directly to Customer.

    Software Provider

  2. Backline Support & Maintenance:

    Software Provider shall provide the Premium level Support & Maintenance service described in the terms set forth in Exhibit D directly to Customer subject to the following:

    1. Software Provider shall only be required to provide Customer with Tier 3 support. Customer will perform all necessary initial problem analysis, diagnosis, and replication of the problem prior to contacting Software Provider. Software Provider shall provide the support services and communicate with only up to five (5) designated support technicians of Customer and five (5) back-up technicians (each of whom must have take a reasonable amount of Software Provider Product training as mutually agreed by Software Provider and Customer). Customer technical support staff must be capable of performing installation and configuration support, answering technical inquiries regarding the product and performing hardware problem determination.
    2. Software Provider shall not be obligated to provide any Maintenance or Support to or otherwise communicate directly with any User.
    3. Customer may provide Maintenance releases solely to Users with respect to which Customer has paid Software Provider the applicable Backline Support fee.
    4. Software Provider shall in addition provide Customer with a reasonably limited amount of general support regarding the program architecture of the Software Provider Products.
  3. Escalation Report:

    Escalations to Software Provider Technical Support must contain the following information:

    • Clear problem description, with supporting documentation such as product and OS error messages.
    • Error Priority and reason for priority classification
    • A reproducible trigger scenario which causes the Error to occur, or, access to a facility where the Error can be reproduced, or, debug notes defining steps taken to produce a trigger scenario.
    • Server Configuration information (OS version and revision level, patches included and levels, hardware configuration, Software Provider configuration information, hardware and software configuration files)
    • Steps taken to resolve User issue.
  4. Ongoing Information Exchange:

    Upon request by Software Provider, Customer will provide to Software Provider: (1) a report in electronic form, listing all Support calls placed with Customer regarding the Software Provider Product with sufficient detail for Software Provider to reasonably diagnose remedial amendments to the Software Provider Products and/or Documentation in order to prevent a recurrence of a service call; and (2) other Support related metrics to be mutually agreed upon by Customer and Software Provider.