Hubble Customer Agreement - Published as of March 6, 2017
Hubble Customer Agreement
The contract terms that apply to the Hubble Software and Hubble Services licensed by a Customer depend upon the type of deployment and licensing model contracted by Customer. The Hubble General Terms and Conditions apply to each Hubble Customer Agreement. In addition, the Order Form for each Customer references a certain deployment type and licensing model which then corresponds with the Product-specific Terms below. The combination of the Order Form, Product-specific Terms and the General Terms and Conditions constitutes the Hubble Customer Agreement.
The contract terms that apply to the Hubble Software and Hubble Services licensed by a Customer depend upon the type of deployment and licensing model contracted by Customer. The Hubble General Terms and Conditions apply to each Hubble Customer Agreement. In addition, the Order Form for each Customer references a certain deployment type and licensing model which then corresponds with the Product-specific Terms below. The combination of the Order Form, Product-specific Terms and the General Terms and Conditions constitutes the Hubble Customer Agreement.
All of the above-referenced terms and conditions follow below.
HUBBLE GENERAL TERMS AND CONDITIONS FOR
HUBBLE SOFTWARE REFERENCED
ON THE ORDER FORM(S)
A. Ownership and Intellectual Property Rights. With regard to any offerings contracted for under this Agreement, including the Hubble Software and any related Content and Documentation, all intellectual property and/or proprietary rights relating to or embodied therein and all copies thereof, are owned by insightsoftware.com or its suppliers and are protected by applicable patent and copyright laws and international treaty provisions. insightsoftware.com reserves all rights not expressly granted to Customer in under this Agreement and no license or rights are granted by implication, estoppel or otherwise. Customer may not remove, add to, or alter, any of the trademarks, trade names, logos, patent or copyright notices or proprietary markings displayed in the Hubble Software. Customer may not adopt, use or register any trademark, trade name or other marketing name of insightsoftware.com or any of its affiliates and third party suppliers, nor use any confusingly similar trademark, trade name or other marketing name. With respect to any suggestions or recommendations by Customer to insightsoftware.com regarding proposed additional features, functionality, performance options or other modifications to insightsoftware.com’s proprietary products or services, Customer hereby grants insightsoftware.com a worldwide, non-exclusive, royalty-free, perpetual right and license to develop, use and exploit such suggestions or recommendations, including without limitation the integration of such features and functionality, in whole or in part, into the insightsoftware.com’s proprietary products and services without the need to account for the same to Customer. Customer acknowledges that any and all products and services incorporating such new features, functionality, or performance shall be the sole and exclusive property of insightsoftware.com and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon insightsoftware.com pursuant to this Agreement or other agreement between the parties.
B. Services. In certain regions, EFZI, LLC offers consulting services and training related to the Hubble Software (“Professional Services”) which may be purchased by the Customer or its Affiliates by the execution of an Order Form or statement of work incorporating the terms and conditions set forth in a separate Professional Services Agreement. Customer agrees that an Affiliate may contract separately for Professional Services under a separate Professional Services Agreement by executing an Order Form for such Professional Services. Unless Professional Services are purchased by Customer on an Order Form executed by the parties, EFZI, LLC is not responsible to provide Customer with any installation, customization, training or other services.
C. Taxes. Customer shall be solely responsible for all taxes, including any interest and penalty, related to software or services provided to it by EFZI, LLC under this Agreement including, by way of example and not limitation, import duties and fees, sales, use, property, excise, value added, and gross receipts. Notwithstanding anything to the contrary in this Section, EFZI, LLC shall be solely responsible for all taxes based on its personal property and net income.
D. Confidentiality.
a. Each party to this Agreement, prior to or after the Effective Date, may receive or has received or may have access to or have accessed certain proprietary or nonpublic information (the “Disclosed Information”) of the other party or its third party suppliers in connection with this Agreement. The disclosing party shall be the "Discloser" and the receiving party shall be the "Recipient.” For purposes of this Agreement, “Confidential Information” is defined as:
i. Disclosed Information in printed, written, graphic, photographic or other tangible form marked as "Confidential," "Proprietary," "Private," “Restricted,” or “Trade Secret” by Discloser;
ii. Disclosed Information in any form, that, due to either the circumstance of disclosure or the nature of the information itself, would put a reasonable recipient on notice as to its confidential nature;
iii. Disclosed Information relating to unreleased products;
iv. the terms and conditions of this Agreement; and
v. the Hubble Software.
The Recipient will use the same care to avoid disclosure, publication or dissemination of such Confidential Information as it uses with its own similar confidential information which it does not wish to disclose, publish or disseminate, but such standard of care shall, in no event be less than a reasonable standard of care. The Confidential Information, including any trade secret, confidential and/or proprietary information contained therein within the Confidential Information, is not to be disclosed to any persons other than the employees of the Recipient. However, Confidential Information may be disclosed to counsel, consultants, subcontractors or agents of the Recipient (if any) who have a need to know, have been instructed that it is Confidential Information, and who are under an obligation of nondisclosure requiring at least a reasonable standard of care. All Confidential Information remains the property of the Discloser and, except as otherwise provided in this Agreement, all Confidential Information is provided by the Discloser on an “as is” basis.
b. The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate (or shall not attach), as the case may be, when any of the following occurs:
i. It was in the public domain at the time of the Discloser's communication thereof to the Recipient;
ii. It entered the public domain through no fault of the Recipient subsequent to the time of the Discloser's communication thereof to the Recipient;
iii. It was in the Recipient's possession free of any obligation of confidence at the time of the Discloser's communication thereof to the Recipient;
iv. It was independently developed by the Recipient; or
v. Its disclosure is required by law, valid subpoena, or court or government order, provided, however, that the Recipient provides prompt notice of such required disclosure order and, at Discloser’s request and expense, cooperate in obtaining a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
Recipient may at any time independently develop information similar to, or products and services that compete with products or services identified in, the Disclosed Information. The parties stipulate and agree that a breach of the confidentiality obligations by the Recipient may cause immediate and irreparable monetary damage to the Discloser and shall entitle the Discloser to apply for injunctive relief in addition to all other remedies. This confidentiality provisions in this Agreement shall supersede the terms of any prior confidentiality agreement entered into by the parties as of the Effective Date.
E. Limitations of Liability. EXCEPT FOR (1) THE INDEMNITY OBLIGATIONS IN THIS AGREEMENT, (2) THE CONFIDENTIALITY OBLIGATIONS IN SECTION D, OR (3) LIABILITY DUE TO PERSONAL INJURY OR DEATH CAUSED BY NEGLIGENCE (OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW), EFZI, LLC’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO (X) IN THE CASE OF A SUBSCRIPTION AGREEMENT FOR HUBBLE SOFTWARE, THE AMOUNT OF THE FEES PAID BY CUSTOMER TO EFZI, LLC OR ITS AUTHORIZED RESELLER FOR THE TWELVE MONTHS PRECEDING THE RELEVANT ACT OR OMISSION AND, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT, AND (Y) IN ALL OTHER CASES, THE AMOUNT OF FEES PAID BY CUSTOMER TO EFZI, LLC OR ITS AUTHORIZED RESELLER FOR THE RELEVANT HUBBLE SOFTWARE OR SUPPORT SERVICES GIVING RISE TO THE LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION D OR ANY BREACH OF INSIGHTSOFTWARE.COM’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, NOR ANY DAMAGES FOR LOSS OF GOODWILL, PROFITS, DATA, (OR USE THEREOF), OR BUSINESS INTERRUPTION ARISING OUT OF EITHER PARTY’S ACT OR FAILURE TO ACT, WHETHER SUCH DAMAGES ARE LABELED IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS AGREEMENT, ANY DAMAGES, FINES OR EQUITABLE REMEDIES PAYABLE TO THIRD PARTIES (INCLUDING AMOUNTS DUE UNDER AN INDEMNIFICATION OBLIGATION SET FORTH HEREIN) SHALL BE CONSTRUED AS DIRECT DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY EXCLUSIVE REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. The allocations of liability in this Section E represent the agreed and bargained for understanding of the parties and each party’s compensation hereunder reflects such allocations.
EFZI, LLC’S THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL DIRECT LIABILITY TO CUSTOMER AND ITS AFFILIATES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA AND OTHER SUCH DAMAGES.
F. Customer Records. EFZI, LLC and its third party vendors reserve the right to audit Customer's use of the Hubble Software no more frequently than once annually at their own expense. All audits shall be conducted during regular business hours at Customer's facilities and shall not unreasonably interfere with Customer’s business activities. EFZI, LLC shall schedule any such audits at least fifteen (15) days in advance.
G. Export Restrictions. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in exporting, transmitting or providing access to the Hubble Software, including but not limited to, compliance with any relevant U.S., UK or EU export embargo, prohibition or restrictions. Customer represents and warrants that it (i) is not named on any U.S. or UK government list of persons or entities prohibited from receiving exports and (ii) is not located in, under the control of, or a national or resident of any U.S., UK or EU embargoed country.
H. U.S. Government Rights. If the Hubble Software are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then, as a commercial item, the Government's rights in the Hubble Software and Documentation will be only as set forth (i) in this Agreement or (ii) as provided in FAR 12.212 (Computer Software) and (for Department of Defense use or disclosure) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (i) or (ii) are the more restrictive.
I. Survival. The indemnities provisions contained in the Agreement and Section A, D, E and J shall survive the termination of this Agreement for any cause.
J. Contracting Party, Notices, Governing Law and Dispute Resolution. This Agreement shall be interpreted, enforced and governed by Georgia law, without regard to the choice of law rules of any state or country. All disputes arising out of or relating to this Agreement or termination thereof shall be resolved by binding arbitration in Miami, Florida, USA, to be submitted to a single arbitrator appointed and operating under the Commercial Arbitration Rules of the American Arbitration Association. The written decision of the arbitrators shall be final, binding, and convertible to a court judgment in any appropriate jurisdiction. The arbitration will be confidential, will be conducted in English and the party not initiating the arbitration will choose its location. Nothing in this Section shall be construed to reduce either party’s right to seek injunctive relief.
K. Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Customer may not transfer or assign this Agreement without the prior written approval of EFZI, LLC, and any assignment or transfer without consent is void.
L. Counterparts. This Agreement and the Order Form(s) may be executed and delivered by original signature or facsimile, and in one or more counterparts, each of which will be deemed to be an original copy and all copies of which, when taken together, will be deemed to constitute one agreement.
M. Headings. The section headings contained in this Agreement are for convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
N. Severability. Wherever possible each provision of this Agreement is to be interpreted in such a manner as will be effective and valid under applicable law, but if any provision of this Agreement is invalid under applicable law, that provision will be ineffective only to that limited extent, without invalidating the remainder of that provision or other provisions of this Agreement.
O. Amendment. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
P. Construction. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms and the singular and plural each include the other.
Q. Waiver. Neither party shall be deemed, by any act or omission, to have waived any of its rights or remedies under this Agreement unless the waiver is in writing and signed by a duly authorized representative of the waiving party. Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any other event.
R. Customer Reference Program. Upon Customer’s express written consent and approval, Customer may be asked to participate in the EFZI, LLC Reference Program. The EFZI, LLC Reference Program involves participating in pre-arranged calls, from time to time, with prospects of EFZI, LLC with the purpose of describing Customer’s use of and the benefits received from the EFZI, LLC Hubble Software. Further, EFZI, LLC is hereby granted permission by Customer to identify Customer as one of its customers for marketing purposes.
S. Force Majeure. Except for the obligation to make payments, neither party is responsible for any losses resulting if the fulfillment of any terms or provisions of this Agreement is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence that party is unable to prevent, including but not limited to revolution or other disorders, wars, acts of enemies or terror, strikes, epidemics, natural disasters, the introduction of viruses or material breaches of network security by third parties, or other similar “acts of God.”
T. Third Parties. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
U. Entire Agreement. This Agreement together with its Order Form(s) and any other document referred to herein, constitutes the entire agreement and understanding of the parties relative to the subject matter of this Agreement. Each of the parties acknowledges and agrees that they have not relied upon any promise, representation, warranty, agreement, covenant, assurance, statement, understanding or undertaking (whether written or not) of any person (whether party to this Agreement or not), other than those expressly set forth in this Agreement. Each party agrees that it shall have no remedies in respect of any such promise, representation, warranty, agreement, covenant, assurance, statement, understanding or undertaking (whether made innocently or negligently) that is not set out in this Agreement. This Agreement replaces and supersedes any and all prior oral or written agreements, representations and discussions relating to such subject matter.
V. Additional Definitions.
i. “Affiliates” means any entity, whether incorporated or not, which directly or indirectly is and remains controlled by the entity identified as “Customer” on the Order Form. Control in an Affiliate requires ownership of more than fifty percent (50%) of the: (i) voting stock of a company with voting stock; or (ii) equity interest in any other enterprise. Customer shall remain responsible for insuring each Affiliate’s compliance with the terms of this Agreement and Customer shall be liable for the acts and omissions of any Affiliates under this Agreement or the Professional Services Agreement. In the event an Affiliate ceases to comply with this definition, this Agreement will terminate solely as it relates to the former Affiliate.
ii. “Documentation” means works of authorship, expressed in any medium and made generally available, relating to the Hubble Software and comprising either (i) instructions for its respective use, or (ii) descriptions of its operational and/or design characteristics. Documentation is currently provided on the insightsoftware.com hosted web site.
iii. “License Key” means a per computer machine readable code that permits Customer to use the Hubble Software under this Agreement for the number of Users specified on one or more executed Order Forms. The Customer cannot use the Hubble Software without a License Key.
iv. “Order Form” means the form evidencing an order for the Hubble Software and any subsequent orders for any of the foregoing submitted online or in written form. Each Order Form shall be in a form approved by EFZI, LLC and shall specify, among other things, the Order Date, the products/services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties.
v. “User” means an individual authorized to access the Hubble Software under this Agreement who is either an employee or an independent contractor(s) engaged by Customer who require access to the Hubble Software to perform their tasks and who are under an obligation of confidentiality at least as protective as the terms of Section E.
vi. “User Types” means various Users listed on the Order Form that have different rights of access to and use of the Hubble Software.
END OF DOCUMENT
B. Services. In certain regions, EFZI, LLC offers consulting services and training related to the Hubble Software (“Professional Services”) which may be purchased by the Customer or its Affiliates by the execution of an Order Form or statement of work incorporating the terms and conditions set forth in a separate Professional Services Agreement. Customer agrees that an Affiliate may contract separately for Professional Services under a separate Professional Services Agreement by executing an Order Form for such Professional Services. Unless Professional Services are purchased by Customer on an Order Form executed by the parties, EFZI, LLC is not responsible to provide Customer with any installation, customization, training or other services.
C. Taxes. Customer shall be solely responsible for all taxes, including any interest and penalty, related to software or services provided to it by EFZI, LLC under this Agreement including, by way of example and not limitation, import duties and fees, sales, use, property, excise, value added, and gross receipts. Notwithstanding anything to the contrary in this Section, EFZI, LLC shall be solely responsible for all taxes based on its personal property and net income.
D. Confidentiality.
a. Each party to this Agreement, prior to or after the Effective Date, may receive or has received or may have access to or have accessed certain proprietary or nonpublic information (the “Disclosed Information”) of the other party or its third party suppliers in connection with this Agreement. The disclosing party shall be the "Discloser" and the receiving party shall be the "Recipient.” For purposes of this Agreement, “Confidential Information” is defined as:
i. Disclosed Information in printed, written, graphic, photographic or other tangible form marked as "Confidential," "Proprietary," "Private," “Restricted,” or “Trade Secret” by Discloser;
ii. Disclosed Information in any form, that, due to either the circumstance of disclosure or the nature of the information itself, would put a reasonable recipient on notice as to its confidential nature;
iii. Disclosed Information relating to unreleased products;
iv. the terms and conditions of this Agreement; and
v. the Hubble Software.
The Recipient will use the same care to avoid disclosure, publication or dissemination of such Confidential Information as it uses with its own similar confidential information which it does not wish to disclose, publish or disseminate, but such standard of care shall, in no event be less than a reasonable standard of care. The Confidential Information, including any trade secret, confidential and/or proprietary information contained therein within the Confidential Information, is not to be disclosed to any persons other than the employees of the Recipient. However, Confidential Information may be disclosed to counsel, consultants, subcontractors or agents of the Recipient (if any) who have a need to know, have been instructed that it is Confidential Information, and who are under an obligation of nondisclosure requiring at least a reasonable standard of care. All Confidential Information remains the property of the Discloser and, except as otherwise provided in this Agreement, all Confidential Information is provided by the Discloser on an “as is” basis.
b. The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate (or shall not attach), as the case may be, when any of the following occurs:
i. It was in the public domain at the time of the Discloser's communication thereof to the Recipient;
ii. It entered the public domain through no fault of the Recipient subsequent to the time of the Discloser's communication thereof to the Recipient;
iii. It was in the Recipient's possession free of any obligation of confidence at the time of the Discloser's communication thereof to the Recipient;
iv. It was independently developed by the Recipient; or
v. Its disclosure is required by law, valid subpoena, or court or government order, provided, however, that the Recipient provides prompt notice of such required disclosure order and, at Discloser’s request and expense, cooperate in obtaining a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
Recipient may at any time independently develop information similar to, or products and services that compete with products or services identified in, the Disclosed Information. The parties stipulate and agree that a breach of the confidentiality obligations by the Recipient may cause immediate and irreparable monetary damage to the Discloser and shall entitle the Discloser to apply for injunctive relief in addition to all other remedies. This confidentiality provisions in this Agreement shall supersede the terms of any prior confidentiality agreement entered into by the parties as of the Effective Date.
E. Limitations of Liability. EXCEPT FOR (1) THE INDEMNITY OBLIGATIONS IN THIS AGREEMENT, (2) THE CONFIDENTIALITY OBLIGATIONS IN SECTION D, OR (3) LIABILITY DUE TO PERSONAL INJURY OR DEATH CAUSED BY NEGLIGENCE (OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW), EFZI, LLC’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO (X) IN THE CASE OF A SUBSCRIPTION AGREEMENT FOR HUBBLE SOFTWARE, THE AMOUNT OF THE FEES PAID BY CUSTOMER TO EFZI, LLC OR ITS AUTHORIZED RESELLER FOR THE TWELVE MONTHS PRECEDING THE RELEVANT ACT OR OMISSION AND, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT, AND (Y) IN ALL OTHER CASES, THE AMOUNT OF FEES PAID BY CUSTOMER TO EFZI, LLC OR ITS AUTHORIZED RESELLER FOR THE RELEVANT HUBBLE SOFTWARE OR SUPPORT SERVICES GIVING RISE TO THE LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION D OR ANY BREACH OF INSIGHTSOFTWARE.COM’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, NOR ANY DAMAGES FOR LOSS OF GOODWILL, PROFITS, DATA, (OR USE THEREOF), OR BUSINESS INTERRUPTION ARISING OUT OF EITHER PARTY’S ACT OR FAILURE TO ACT, WHETHER SUCH DAMAGES ARE LABELED IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS AGREEMENT, ANY DAMAGES, FINES OR EQUITABLE REMEDIES PAYABLE TO THIRD PARTIES (INCLUDING AMOUNTS DUE UNDER AN INDEMNIFICATION OBLIGATION SET FORTH HEREIN) SHALL BE CONSTRUED AS DIRECT DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY EXCLUSIVE REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. The allocations of liability in this Section E represent the agreed and bargained for understanding of the parties and each party’s compensation hereunder reflects such allocations.
EFZI, LLC’S THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL DIRECT LIABILITY TO CUSTOMER AND ITS AFFILIATES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA AND OTHER SUCH DAMAGES.
F. Customer Records. EFZI, LLC and its third party vendors reserve the right to audit Customer's use of the Hubble Software no more frequently than once annually at their own expense. All audits shall be conducted during regular business hours at Customer's facilities and shall not unreasonably interfere with Customer’s business activities. EFZI, LLC shall schedule any such audits at least fifteen (15) days in advance.
G. Export Restrictions. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in exporting, transmitting or providing access to the Hubble Software, including but not limited to, compliance with any relevant U.S., UK or EU export embargo, prohibition or restrictions. Customer represents and warrants that it (i) is not named on any U.S. or UK government list of persons or entities prohibited from receiving exports and (ii) is not located in, under the control of, or a national or resident of any U.S., UK or EU embargoed country.
H. U.S. Government Rights. If the Hubble Software are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then, as a commercial item, the Government's rights in the Hubble Software and Documentation will be only as set forth (i) in this Agreement or (ii) as provided in FAR 12.212 (Computer Software) and (for Department of Defense use or disclosure) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (i) or (ii) are the more restrictive.
I. Survival. The indemnities provisions contained in the Agreement and Section A, D, E and J shall survive the termination of this Agreement for any cause.
J. Contracting Party, Notices, Governing Law and Dispute Resolution. This Agreement shall be interpreted, enforced and governed by Georgia law, without regard to the choice of law rules of any state or country. All disputes arising out of or relating to this Agreement or termination thereof shall be resolved by binding arbitration in Miami, Florida, USA, to be submitted to a single arbitrator appointed and operating under the Commercial Arbitration Rules of the American Arbitration Association. The written decision of the arbitrators shall be final, binding, and convertible to a court judgment in any appropriate jurisdiction. The arbitration will be confidential, will be conducted in English and the party not initiating the arbitration will choose its location. Nothing in this Section shall be construed to reduce either party’s right to seek injunctive relief.
K. Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Customer may not transfer or assign this Agreement without the prior written approval of EFZI, LLC, and any assignment or transfer without consent is void.
L. Counterparts. This Agreement and the Order Form(s) may be executed and delivered by original signature or facsimile, and in one or more counterparts, each of which will be deemed to be an original copy and all copies of which, when taken together, will be deemed to constitute one agreement.
M. Headings. The section headings contained in this Agreement are for convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
N. Severability. Wherever possible each provision of this Agreement is to be interpreted in such a manner as will be effective and valid under applicable law, but if any provision of this Agreement is invalid under applicable law, that provision will be ineffective only to that limited extent, without invalidating the remainder of that provision or other provisions of this Agreement.
O. Amendment. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
P. Construction. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms and the singular and plural each include the other.
Q. Waiver. Neither party shall be deemed, by any act or omission, to have waived any of its rights or remedies under this Agreement unless the waiver is in writing and signed by a duly authorized representative of the waiving party. Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any other event.
R. Customer Reference Program. Upon Customer’s express written consent and approval, Customer may be asked to participate in the EFZI, LLC Reference Program. The EFZI, LLC Reference Program involves participating in pre-arranged calls, from time to time, with prospects of EFZI, LLC with the purpose of describing Customer’s use of and the benefits received from the EFZI, LLC Hubble Software. Further, EFZI, LLC is hereby granted permission by Customer to identify Customer as one of its customers for marketing purposes.
S. Force Majeure. Except for the obligation to make payments, neither party is responsible for any losses resulting if the fulfillment of any terms or provisions of this Agreement is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence that party is unable to prevent, including but not limited to revolution or other disorders, wars, acts of enemies or terror, strikes, epidemics, natural disasters, the introduction of viruses or material breaches of network security by third parties, or other similar “acts of God.”
T. Third Parties. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
U. Entire Agreement. This Agreement together with its Order Form(s) and any other document referred to herein, constitutes the entire agreement and understanding of the parties relative to the subject matter of this Agreement. Each of the parties acknowledges and agrees that they have not relied upon any promise, representation, warranty, agreement, covenant, assurance, statement, understanding or undertaking (whether written or not) of any person (whether party to this Agreement or not), other than those expressly set forth in this Agreement. Each party agrees that it shall have no remedies in respect of any such promise, representation, warranty, agreement, covenant, assurance, statement, understanding or undertaking (whether made innocently or negligently) that is not set out in this Agreement. This Agreement replaces and supersedes any and all prior oral or written agreements, representations and discussions relating to such subject matter.
V. Additional Definitions.
i. “Affiliates” means any entity, whether incorporated or not, which directly or indirectly is and remains controlled by the entity identified as “Customer” on the Order Form. Control in an Affiliate requires ownership of more than fifty percent (50%) of the: (i) voting stock of a company with voting stock; or (ii) equity interest in any other enterprise. Customer shall remain responsible for insuring each Affiliate’s compliance with the terms of this Agreement and Customer shall be liable for the acts and omissions of any Affiliates under this Agreement or the Professional Services Agreement. In the event an Affiliate ceases to comply with this definition, this Agreement will terminate solely as it relates to the former Affiliate.
ii. “Documentation” means works of authorship, expressed in any medium and made generally available, relating to the Hubble Software and comprising either (i) instructions for its respective use, or (ii) descriptions of its operational and/or design characteristics. Documentation is currently provided on the insightsoftware.com hosted web site.
iii. “License Key” means a per computer machine readable code that permits Customer to use the Hubble Software under this Agreement for the number of Users specified on one or more executed Order Forms. The Customer cannot use the Hubble Software without a License Key.
iv. “Order Form” means the form evidencing an order for the Hubble Software and any subsequent orders for any of the foregoing submitted online or in written form. Each Order Form shall be in a form approved by EFZI, LLC and shall specify, among other things, the Order Date, the products/services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties.
v. “User” means an individual authorized to access the Hubble Software under this Agreement who is either an employee or an independent contractor(s) engaged by Customer who require access to the Hubble Software to perform their tasks and who are under an obligation of confidentiality at least as protective as the terms of Section E.
vi. “User Types” means various Users listed on the Order Form that have different rights of access to and use of the Hubble Software.
END OF DOCUMENT
THIS SECTION IS FOR LICENSING HUBBLE ON-PREMISE UNDER FULLY PAID LICENSING
HUBBLE SOFTWARE LICENSE AND SUPPORT TERMS
These Hubble Software License and Support Terms, the General Terms and Conditions incorporated by reference herein and the Order Form(s) (collectively, the “Agreement”) are made and entered into as of the Order Date of the first Order Form (the “Effective Date”) executed between (a) the EFZI, LLC entity identified in the General Terms and Conditions (such entity to be referred to herein as “EFZI, LLC”), and (b) the entity described in such Order Form (“Customer”). The terms and conditions of the Agreement shall govern the Hubble Software and Support to be provided by EFZI, LLC. Any current or future Order Form referencing these Hubble Software License and Support Terms shall be considered incorporated by reference into the Agreement. The terms of the Hubble Software License and Support Terms and the General Terms and Conditions shall take precedence over any inconsistent terms contained in an Order Form, except when the parties agree otherwise by making specific reference on the Order Form to the provisions that will be modified or changed. Capitalized terms are as defined below and in the General Terms and Conditions.
1. Grant of License from EFZI, LLC to Customer. Subject to the terms and conditions contained in this Agreement, EFZI, LLC grants to Customer and its Affiliates a limited non-exclusive, non-transferable, license to the Hubble Software in object code only, including associated Documentation, listed on one or more Order Form(s). This license includes only the rights expressly granted in this Agreement, which include the right to:
(a) Install and use the Hubble Software for use by no more than the number of Users designated in the Order Form;
(b) Make a reasonable number of copies of the Hubble Software and Documentation for backup, archival and disaster recovery purposes only; and
(c) Copy and distribute the Documentation solely to Users.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by EFZI, LLC regarding future functionality or features of the Hubble Software. Customer may only use the Hubble Software that Customer has licensed from EFZI, LLC under this Agreement, even though, upon download, the Hubble Software may contain additional applications or modules.
2. Third Party Hosting. Customer may, at its option and expense, allow a third party to host the Hubble Software on its computers on Customer’s behalf. Customer is responsible for ensuring that the hosting entity complies with the terms and conditions of this Agreement and Customer is fully responsible to EFZI, LLC for the acts and omissions of such hosting entity as it relates to its compliance with the terms of this Agreement. Customer is liable for any additional License Fees due to EFZI, LLC in the event the hosting entity exceeds the number of Users licensed or otherwise exceeds the scope of the license granted by this Agreement.
3. License Restrictions. Customer agrees not to and shall not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Hubble Software or Documentation; (b) merge the Hubble Software with other software; (c) license, sublicense, sell, resell, transfer, distribute or otherwise transfer, or commercially exploit or make available the Hubble Software or Documentation to any third party; (d) use the Hubble Software to process the data of or otherwise benefit third parties; (e) reverse engineer, remanufacture, decompile, disassemble, or otherwise attempt, in whole or in part, to derive the source code for the Hubble Software; (f) unbundle and/or use separately any third party components of the Hubble Software; or (g) otherwise use or copy the Hubble Software or Documentation except as expressly allowed under this Agreement.
4. Delivery, License Key and Shipping. EFZI, LLC will provide, or cause to be provided, to Customer one copy of the Hubble Software in electronic (downloadable) form and a License Key to access the Hubble Software. EFZI, LLC may, in its sole discretion, provide, or cause to be provided, the License Key on a temporary basis with a specific date upon which the Hubble Software will cease to operate. If a temporary License Key is provided, EFZI, LLC will provide, or cause to be provided, to Customer a permanent License Key upon receipt of the License Fee and first year Support Fee for the Hubble Software. The License Key may only be used on one computer server and as otherwise permitted under Section 1 of this Agreement. The Hubble Software is deemed accepted by Customer upon delivery. Customer has no right to return the Hubble Software.
5. Licenses for Additional Products and Users. Customer may license additional EFZI, LLC software products or additional Users for the Hubble Software by entering into a written Order Form signed by both parties. Upon receipt and acceptance of an Order Form, EFZI, LLC will deliver, or cause to be delivered to Customer, pursuant to the terms of this Agreement, the additional Hubble Software and/or License Key for additional Users. EFZI, LLC shall invoice Customer for the additional Hubble Software and Support Fees (as defined in Section 7 below) as provided for herein.
6. Hubble Software Maintenance and Support. EFZI, LLC offers maintenance and support services for the Hubble Software (“Support”), and will provide such Support under the terms of this Section. EFZI, LLC shall provide Customer with Support for the Hubble Software commencing on the Effective Date for a period of twelve (12) months (the “Initial Support Period”). Thereafter, Support shall automatically renew for Supported Programs for successive twelve (12) month terms (“Renewal Term(s)”) unless either party provides written notice of non-renewal at least sixty (60) days prior to expiration of the Initial Support Term or any subsequent Renewal Term. Non-renewal of Support does not terminate the licenses granted under this Agreement.
Support will be provided under the terms of this Agreement as further modified by the published Service Level Policies for the Hubble Software listed on the Order Form in effect at the beginning of each Renewal Term. The “Service Level Policies” set out EFZI, LLC’s standard service levels and are incorporated into this Agreement by reference.
Support Fees initially will be as specified in the Order Form and will be calculated for each Renewal Term based on the then-current list price of the Hubble Software multiplied by the then-current rates for Support (the “Support Fee”). If Customer fails to remit any Support Fees, EFZI, LLC shall have no duty to provide Support under this Agreement. Support Fees included in any Order Form represent the incremental Support Fee for that specific Order and are in addition to any other Support Fees listed on any other previous Order Form(s) or invoiced to Customer.
Notwithstanding anything to the contrary in this Agreement, all Renewal Terms shall be coterminous with the relevant anniversary of the Effective Date of this Agreement (the “Coterminous Date”), and Support Fees for any additional Hubble Software or Users licensed after the Effective Date shall be prorated from the effective date of the Order Form to the Coterminous Date.
Once Support has been cancelled by Customer for the Hubble Software, it can be reinstated only if the Hubble Software is still a Supported Program and Customer pays a reinstatement fee equal to the Support Fees that would have been payable for the period of time during which Support was cancelled for such Hubble Software. Unless Support is purchased by Customer on an Order Form executed by the parties, EFZI, LLC is not responsible to provide Customer with any New Releases, technical help or other services.
7. Customer Responsibilities. Customer shall have sole responsibility for ensuring that Customer’s use of the Hubble Software to process its data or information complies with the terms of any third-party software or database license terms. Customer is responsible for undertaking the proper supervision, control and management of its use of the Hubble Software and any New Releases, including, but not limited to: (a) assuring proper Supported Environment configuration, Hubble Software installation and operating methods; (b) installing and operating the Hubble Software and any New Releases in conformity with any instructions received from EFZI, LLC; and (c) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction. Customer is responsible for maintaining a procedure external to the Hubble Software for reconstruction of lost or altered files, data and programs.
Customer is required to notify EFZI, LLC prior to transferring any Users or the Hubble Software outside of the use location specified on the Order Form (“Use Location”). Additional License and Support Fees may be due upon the transfer of the Hubble Software or Users outside the Use Location. Such additional amounts due will be billed and payable in accordance with the terms of this Agreement. In no event, however, will a transfer of Hubble Software or Users result in a refund of License or Support Fees to the Customer.
8. Fees and Payment Terms. Customer agrees to pay EFZI, LLC the fees specified in the Order Form(s) for the Hubble Software (“License Fees”) and the Support Fees (collectively, “Fees”). All Fees under this Agreement and the Order Forms are due and payable in the currency specified on the Order Form upon receipt of the invoice unless otherwise provided for on the Order Form. Without prejudice to any other right and remedies of EFZI, LLC, unpaid invoices shall accrue interest at the rate of the lesser of 1½% per month or the highest rate allowed by law, commencing thirty (30) days from the due date of such invoice.
9. Warranty. EFZI, LLC warrants to Customer that the unmodified Hubble Software will contain no Defects for a period of ninety (90) days after delivery, provided that the Hubble Software is properly installed and used by Customer in accordance with the Documentation. The entire liability of EFZI, LLC and the exclusive remedy of Customer for breach of the warranty is limited, at EFZI, LLC option, to: (a) replacement of the Hubble Software; (b) repair of the Hubble Software; or (c) termination of this Agreement and refund of the License Fees paid by Customer. EFZI, LLC, INSIGHTSOFTWARE.COM’S, AND THEIR THIRD PARTY SUPPLIERS MAKE NO DIRECT WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER UNDER THIS AGREEMENT. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM WARRANT THAT THE USE OF THE PRODUCTS SHALL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, COURSE OF PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
MANY FACTORS NOT WITHIN THE CONTROL OF EFZI, LLC ORINSIGHTSOFTWARE.COM, SUCH AS PROCESSING VOLUMES, INTERNAL NETWORK INFRASTRUCTURE AND CAPACITY, AND USER BEHAVIOR CAN AFFECT THE PERFORMANCE OF THE HUBBLE SOFTWARE. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM MAKE ANY WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE HUBBLE SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER.
10. Infringement Indemnification. EFZI, LLC agrees to defend Customer and to pay any judgments, costs and expenses, or amounts paid in settlement to which EFZI, LLC agrees, which Customer may sustain as the result of any claim by a third party that the Hubble Software by itself and in unmodified form infringes or misappropriates such third party’s (i) duly issued patent existing or issued prior to the initial delivery date of the applicable Hubble Software, or (ii) copyright, or trade secrets existing as of the delivery date of the applicable Hubble Software. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than Supported Program(s); (b) the use of Hubble Software that has been modified or merged with other programs by the Customer and the claim arises from such modification or merger; or (c) the use of the Hubble Software in combination with other Hubble Software or hardware not provided under this Agreement or approved by EFZI, LLC in its Documentation and such combination gives rise to the alleged infringement.
In the event of a claim for indemnification, Customer must:
(a) Notify EFZI, LLC in writing of the suit or claim within ten (10) days after receiving notice;
(b) Give EFZI, LLC sole authority to defend or settle the suit or claim; and
(c) Reasonably cooperate and assist EFZI, LLC (at EFZI, LLC’s expense) with defense of the suit or claim.
11. Remedies for Infringement. If the Hubble Software becomes or in EFZI, LLC's opinion is likely to become the subject of a suit or claim of infringement of an intellectual property right, EFZI, LLC will, at EFZI, LLC’s option and expense:
(a) Procure for the Customer the right to continue use of the Hubble Software as furnished;
(b) Replace or modify the Hubble Software to make it non-infringing, provided that the Hubble Software still substantially conforms to the applicable Documentation; or
(c) If EFZI, LLC is not reasonably able to do either (a) or (b), terminate this Agreement and/or the related Order Form(s) to the extent it relates to the infringing Hubble Software. In the event that this Agreement and/or Order Form(s) is terminated under this subsection (c), Customer must cease to use the infringing Hubble Software, and EFZI, LLC will pay Customer, as Customer’s sole and exclusive remedy, an amount equal to the License Fees paid for the infringing Hubble Software less a proportional adjustment for the time the Hubble Software was used by the Customer through the termination date equal to the ratio of the time elapsed since the delivery date to five (5) years.
12. Term and Termination. This Agreement remains in effect unless earlier terminated as set forth in this section. Customer may terminate this Agreement in its entirety at any time upon thirty (30) days written notice to EFZI, LLC. Either party may terminate this Agreement, upon written notice, for any material breach (including the failure to pay License Fees when due) that the breaching party fails to cure within thirty (30) days following written notice specifying the breach. If the breach is incapable of cure, the termination shall be effective upon notice to the breaching party. In the event of termination of this Agreement for any cause, the license to use the Hubble Software shall be immediately revoked and all Hubble Software and supporting materials will be returned to EFZI, LLC within ten (10) days or destroyed and an affidavit supplied to EFZI, LLC certifying destruction. Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief and return or destruction of the Hubble Software. Such termination shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
13. Additional Definitions.
“Defect” means a reproducible defect in the Hubble Software when operated on a Supported Environment that causes the Hubble Software not to operate substantially in accordance with the Documentation.
“Hubble Software” means the products licensed by EFZI, LLC to Customer that are listed on an executed Order Form(s) and all New Releases related thereto.
“New Release” means a Major Release of, or Service Pack for, the Hubble Software that is made generally available by insightsoftware.com in its sole discretion and which is provided at no additional charge to those customers subscribing to Support. A New Release shall not include any release, option or future product that insightsoftware.com licenses separately. “Major Release” and “Service Pack” are defined in the Service Level Policies.
“Supported Environment(s) means the technical environment that adheres to the insightsoftware.com published minimum technical requirements (MTRs) for the specific Support Program as published on insightsoftware.com’s Community Portal™ or any successor website.
“Supported Program(s)” shall mean all versions of the Hubble Software for which Support is offered pursuant to the then current Service Level Policies in effect.
END OF DOCUMENT
These Hubble Software License and Support Terms, the General Terms and Conditions incorporated by reference herein and the Order Form(s) (collectively, the “Agreement”) are made and entered into as of the Order Date of the first Order Form (the “Effective Date”) executed between (a) the EFZI, LLC entity identified in the General Terms and Conditions (such entity to be referred to herein as “EFZI, LLC”), and (b) the entity described in such Order Form (“Customer”). The terms and conditions of the Agreement shall govern the Hubble Software and Support to be provided by EFZI, LLC. Any current or future Order Form referencing these Hubble Software License and Support Terms shall be considered incorporated by reference into the Agreement. The terms of the Hubble Software License and Support Terms and the General Terms and Conditions shall take precedence over any inconsistent terms contained in an Order Form, except when the parties agree otherwise by making specific reference on the Order Form to the provisions that will be modified or changed. Capitalized terms are as defined below and in the General Terms and Conditions.
1. Grant of License from EFZI, LLC to Customer. Subject to the terms and conditions contained in this Agreement, EFZI, LLC grants to Customer and its Affiliates a limited non-exclusive, non-transferable, license to the Hubble Software in object code only, including associated Documentation, listed on one or more Order Form(s). This license includes only the rights expressly granted in this Agreement, which include the right to:
(a) Install and use the Hubble Software for use by no more than the number of Users designated in the Order Form;
(b) Make a reasonable number of copies of the Hubble Software and Documentation for backup, archival and disaster recovery purposes only; and
(c) Copy and distribute the Documentation solely to Users.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by EFZI, LLC regarding future functionality or features of the Hubble Software. Customer may only use the Hubble Software that Customer has licensed from EFZI, LLC under this Agreement, even though, upon download, the Hubble Software may contain additional applications or modules.
2. Third Party Hosting. Customer may, at its option and expense, allow a third party to host the Hubble Software on its computers on Customer’s behalf. Customer is responsible for ensuring that the hosting entity complies with the terms and conditions of this Agreement and Customer is fully responsible to EFZI, LLC for the acts and omissions of such hosting entity as it relates to its compliance with the terms of this Agreement. Customer is liable for any additional License Fees due to EFZI, LLC in the event the hosting entity exceeds the number of Users licensed or otherwise exceeds the scope of the license granted by this Agreement.
3. License Restrictions. Customer agrees not to and shall not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Hubble Software or Documentation; (b) merge the Hubble Software with other software; (c) license, sublicense, sell, resell, transfer, distribute or otherwise transfer, or commercially exploit or make available the Hubble Software or Documentation to any third party; (d) use the Hubble Software to process the data of or otherwise benefit third parties; (e) reverse engineer, remanufacture, decompile, disassemble, or otherwise attempt, in whole or in part, to derive the source code for the Hubble Software; (f) unbundle and/or use separately any third party components of the Hubble Software; or (g) otherwise use or copy the Hubble Software or Documentation except as expressly allowed under this Agreement.
4. Delivery, License Key and Shipping. EFZI, LLC will provide, or cause to be provided, to Customer one copy of the Hubble Software in electronic (downloadable) form and a License Key to access the Hubble Software. EFZI, LLC may, in its sole discretion, provide, or cause to be provided, the License Key on a temporary basis with a specific date upon which the Hubble Software will cease to operate. If a temporary License Key is provided, EFZI, LLC will provide, or cause to be provided, to Customer a permanent License Key upon receipt of the License Fee and first year Support Fee for the Hubble Software. The License Key may only be used on one computer server and as otherwise permitted under Section 1 of this Agreement. The Hubble Software is deemed accepted by Customer upon delivery. Customer has no right to return the Hubble Software.
5. Licenses for Additional Products and Users. Customer may license additional EFZI, LLC software products or additional Users for the Hubble Software by entering into a written Order Form signed by both parties. Upon receipt and acceptance of an Order Form, EFZI, LLC will deliver, or cause to be delivered to Customer, pursuant to the terms of this Agreement, the additional Hubble Software and/or License Key for additional Users. EFZI, LLC shall invoice Customer for the additional Hubble Software and Support Fees (as defined in Section 7 below) as provided for herein.
6. Hubble Software Maintenance and Support. EFZI, LLC offers maintenance and support services for the Hubble Software (“Support”), and will provide such Support under the terms of this Section. EFZI, LLC shall provide Customer with Support for the Hubble Software commencing on the Effective Date for a period of twelve (12) months (the “Initial Support Period”). Thereafter, Support shall automatically renew for Supported Programs for successive twelve (12) month terms (“Renewal Term(s)”) unless either party provides written notice of non-renewal at least sixty (60) days prior to expiration of the Initial Support Term or any subsequent Renewal Term. Non-renewal of Support does not terminate the licenses granted under this Agreement.
Support will be provided under the terms of this Agreement as further modified by the published Service Level Policies for the Hubble Software listed on the Order Form in effect at the beginning of each Renewal Term. The “Service Level Policies” set out EFZI, LLC’s standard service levels and are incorporated into this Agreement by reference.
Support Fees initially will be as specified in the Order Form and will be calculated for each Renewal Term based on the then-current list price of the Hubble Software multiplied by the then-current rates for Support (the “Support Fee”). If Customer fails to remit any Support Fees, EFZI, LLC shall have no duty to provide Support under this Agreement. Support Fees included in any Order Form represent the incremental Support Fee for that specific Order and are in addition to any other Support Fees listed on any other previous Order Form(s) or invoiced to Customer.
Notwithstanding anything to the contrary in this Agreement, all Renewal Terms shall be coterminous with the relevant anniversary of the Effective Date of this Agreement (the “Coterminous Date”), and Support Fees for any additional Hubble Software or Users licensed after the Effective Date shall be prorated from the effective date of the Order Form to the Coterminous Date.
Once Support has been cancelled by Customer for the Hubble Software, it can be reinstated only if the Hubble Software is still a Supported Program and Customer pays a reinstatement fee equal to the Support Fees that would have been payable for the period of time during which Support was cancelled for such Hubble Software. Unless Support is purchased by Customer on an Order Form executed by the parties, EFZI, LLC is not responsible to provide Customer with any New Releases, technical help or other services.
7. Customer Responsibilities. Customer shall have sole responsibility for ensuring that Customer’s use of the Hubble Software to process its data or information complies with the terms of any third-party software or database license terms. Customer is responsible for undertaking the proper supervision, control and management of its use of the Hubble Software and any New Releases, including, but not limited to: (a) assuring proper Supported Environment configuration, Hubble Software installation and operating methods; (b) installing and operating the Hubble Software and any New Releases in conformity with any instructions received from EFZI, LLC; and (c) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction. Customer is responsible for maintaining a procedure external to the Hubble Software for reconstruction of lost or altered files, data and programs.
Customer is required to notify EFZI, LLC prior to transferring any Users or the Hubble Software outside of the use location specified on the Order Form (“Use Location”). Additional License and Support Fees may be due upon the transfer of the Hubble Software or Users outside the Use Location. Such additional amounts due will be billed and payable in accordance with the terms of this Agreement. In no event, however, will a transfer of Hubble Software or Users result in a refund of License or Support Fees to the Customer.
8. Fees and Payment Terms. Customer agrees to pay EFZI, LLC the fees specified in the Order Form(s) for the Hubble Software (“License Fees”) and the Support Fees (collectively, “Fees”). All Fees under this Agreement and the Order Forms are due and payable in the currency specified on the Order Form upon receipt of the invoice unless otherwise provided for on the Order Form. Without prejudice to any other right and remedies of EFZI, LLC, unpaid invoices shall accrue interest at the rate of the lesser of 1½% per month or the highest rate allowed by law, commencing thirty (30) days from the due date of such invoice.
9. Warranty. EFZI, LLC warrants to Customer that the unmodified Hubble Software will contain no Defects for a period of ninety (90) days after delivery, provided that the Hubble Software is properly installed and used by Customer in accordance with the Documentation. The entire liability of EFZI, LLC and the exclusive remedy of Customer for breach of the warranty is limited, at EFZI, LLC option, to: (a) replacement of the Hubble Software; (b) repair of the Hubble Software; or (c) termination of this Agreement and refund of the License Fees paid by Customer. EFZI, LLC, INSIGHTSOFTWARE.COM’S, AND THEIR THIRD PARTY SUPPLIERS MAKE NO DIRECT WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER UNDER THIS AGREEMENT. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM WARRANT THAT THE USE OF THE PRODUCTS SHALL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, COURSE OF PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
MANY FACTORS NOT WITHIN THE CONTROL OF EFZI, LLC ORINSIGHTSOFTWARE.COM, SUCH AS PROCESSING VOLUMES, INTERNAL NETWORK INFRASTRUCTURE AND CAPACITY, AND USER BEHAVIOR CAN AFFECT THE PERFORMANCE OF THE HUBBLE SOFTWARE. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM MAKE ANY WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE HUBBLE SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER.
10. Infringement Indemnification. EFZI, LLC agrees to defend Customer and to pay any judgments, costs and expenses, or amounts paid in settlement to which EFZI, LLC agrees, which Customer may sustain as the result of any claim by a third party that the Hubble Software by itself and in unmodified form infringes or misappropriates such third party’s (i) duly issued patent existing or issued prior to the initial delivery date of the applicable Hubble Software, or (ii) copyright, or trade secrets existing as of the delivery date of the applicable Hubble Software. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than Supported Program(s); (b) the use of Hubble Software that has been modified or merged with other programs by the Customer and the claim arises from such modification or merger; or (c) the use of the Hubble Software in combination with other Hubble Software or hardware not provided under this Agreement or approved by EFZI, LLC in its Documentation and such combination gives rise to the alleged infringement.
In the event of a claim for indemnification, Customer must:
(a) Notify EFZI, LLC in writing of the suit or claim within ten (10) days after receiving notice;
(b) Give EFZI, LLC sole authority to defend or settle the suit or claim; and
(c) Reasonably cooperate and assist EFZI, LLC (at EFZI, LLC’s expense) with defense of the suit or claim.
11. Remedies for Infringement. If the Hubble Software becomes or in EFZI, LLC's opinion is likely to become the subject of a suit or claim of infringement of an intellectual property right, EFZI, LLC will, at EFZI, LLC’s option and expense:
(a) Procure for the Customer the right to continue use of the Hubble Software as furnished;
(b) Replace or modify the Hubble Software to make it non-infringing, provided that the Hubble Software still substantially conforms to the applicable Documentation; or
(c) If EFZI, LLC is not reasonably able to do either (a) or (b), terminate this Agreement and/or the related Order Form(s) to the extent it relates to the infringing Hubble Software. In the event that this Agreement and/or Order Form(s) is terminated under this subsection (c), Customer must cease to use the infringing Hubble Software, and EFZI, LLC will pay Customer, as Customer’s sole and exclusive remedy, an amount equal to the License Fees paid for the infringing Hubble Software less a proportional adjustment for the time the Hubble Software was used by the Customer through the termination date equal to the ratio of the time elapsed since the delivery date to five (5) years.
12. Term and Termination. This Agreement remains in effect unless earlier terminated as set forth in this section. Customer may terminate this Agreement in its entirety at any time upon thirty (30) days written notice to EFZI, LLC. Either party may terminate this Agreement, upon written notice, for any material breach (including the failure to pay License Fees when due) that the breaching party fails to cure within thirty (30) days following written notice specifying the breach. If the breach is incapable of cure, the termination shall be effective upon notice to the breaching party. In the event of termination of this Agreement for any cause, the license to use the Hubble Software shall be immediately revoked and all Hubble Software and supporting materials will be returned to EFZI, LLC within ten (10) days or destroyed and an affidavit supplied to EFZI, LLC certifying destruction. Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief and return or destruction of the Hubble Software. Such termination shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
13. Additional Definitions.
“Defect” means a reproducible defect in the Hubble Software when operated on a Supported Environment that causes the Hubble Software not to operate substantially in accordance with the Documentation.
“Hubble Software” means the products licensed by EFZI, LLC to Customer that are listed on an executed Order Form(s) and all New Releases related thereto.
“New Release” means a Major Release of, or Service Pack for, the Hubble Software that is made generally available by insightsoftware.com in its sole discretion and which is provided at no additional charge to those customers subscribing to Support. A New Release shall not include any release, option or future product that insightsoftware.com licenses separately. “Major Release” and “Service Pack” are defined in the Service Level Policies.
“Supported Environment(s) means the technical environment that adheres to the insightsoftware.com published minimum technical requirements (MTRs) for the specific Support Program as published on insightsoftware.com’s Community Portal™ or any successor website.
“Supported Program(s)” shall mean all versions of the Hubble Software for which Support is offered pursuant to the then current Service Level Policies in effect.
END OF DOCUMENT
THIS SECTION IS FOR LICENSING HUBBLE ON-PREMISE UNDER SUBSCRIPTION LICENSING
HUBBLE SOFTWARE SUBSCRIPTION TERMS
These Hubble Software Subscription Terms, the General Terms and Conditions incorporated by reference herein and the Order Form(s) (collectively, the “Agreement”) are made and entered into as of the Order Date of the first Order Form (the “Effective Date”) executed between (a) the EFZI, LLC entity identified in the General Terms and Conditions (such entity to be referred to herein as “EFZI, LLC”), and (b) the entity described in such Order Form (“Customer”). The terms and conditions of the Agreement shall govern the Hubble Software and Support to be provided by EFZI, LLC. Any current or future Order Form referencing these Hubble Software Subscription Terms shall be considered incorporated by reference into the Agreement. The terms of the Hubble Software Subscription Terms and the General Terms and Conditions shall take precedence over any inconsistent terms contained in an Order Form, except when the parties agree otherwise by making specific reference on the Order Form to the provisions that will be modified or changed. Capitalized terms are as defined below and in the General Terms and Conditions.
1. Grant of License from EFZI, LLC to Customer. Subject to the terms and conditions contained in this Agreement, EFZI, LLC grants to Customer and its Affiliates a limited non-exclusive, non-transferable, license to the Hubble Software in object code only, including associated Documentation, listed on one or more Order Form(s). This license includes only the rights expressly granted in this Agreement, which include the right to:
(a) Install and use the Hubble Software for use by no more than the number of Users designated in the Order Form;
(b) Make a reasonable number of copies of the Hubble Software and Documentation for backup, archival and disaster recovery purposes only; and
(c) Copy and distribute the Documentation solely to Users.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by EFZI, LLC regarding future functionality or features of the Hubble Software. Customer may only use the Hubble Software that Customer has licensed from EFZI, LLC under this Agreement, even though, upon download, the Hubble Software may contain additional applications or modules.
2. Third Party Hosting. Customer may, at its option and expense, allow a third party to host the Hubble Software on its computers on Customer’s behalf. Customer is responsible for ensuring that the hosting entity complies with the terms and conditions of this Agreement and Customer is fully responsible to EFZI, LLC for the acts and omissions of such hosting entity as it relates to its compliance with the terms of this Agreement. Customer is liable for any additional Subscription Fees due to EFZI, LLC in the event the hosting entity exceeds the number of Users licensed or otherwise exceeds the scope of the license granted by this Agreement.
3. License Restrictions. Customer agrees not to and shall not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Hubble Software or Documentation; (b) merge the Hubble Software with other software; (c) license, sublicense, sell, resell, transfer, distribute or otherwise transfer, or commercially exploit or make available the Hubble Software or Documentation to any third party; (d) use the Hubble Software to process the data of or otherwise benefit third parties; (e) reverse engineer, remanufacture, decompile, disassemble, or otherwise attempt, in whole or in part, to derive the source code for the Hubble Software; (f) unbundle and/or use separately any third party components of the Hubble Software; or (g) otherwise use or copy the Hubble Software or Documentation except as expressly allowed under this Agreement.
4. Delivery, License Key and Shipping. EFZI, LLC will provide, or cause to provide, to Customer one copy of the Hubble Software in electronic (downloadable) form and a License Key to access the Hubble Software. Customer’s Hubble Software will be initiated by a thirty (30) day License Key starting from the Subscription Start Date pending payment of the Subscription Fee for the initial Billing Period. The License Key is time-sensitive and deactivates the Hubble Software upon a date corresponding with the beginning of the next Billing Period plus seven (7) days. EFZI, LLC agrees to provide, or cause to provide and/or activate, or cause to activate, the License Key for each subsequent Billing Period within forty-eight (48) hours of receiving payment of the Subscription Fee for the relevant Billing Period. EFZI, LLC is not liable for costs or damages associated with the expiry of the License Key caused by a failure of Customer to timely a) remit the Subscription Fees or b) install the License Key properly as provided to it by EFZI, LLC. The License Key may only be used on one computer server and as otherwise permitted under Section 1 of this Agreement. The Hubble Software is deemed accepted by Customer upon delivery and Customer has no right to return the Hubble Software.
5. Licenses for Additional Products and Users. Customer may license additional EFZI, LLC software products or additional Users for the Hubble Software by entering into a written Order Form signed by both parties. Upon receipt and acceptance of an Order Form, EFZI, LLC will deliver, or cause to deliver, to Customer, pursuant to the terms of this Agreement, the additional Hubble Software and/or License Key for additional Users. EFZI, LLC shall invoice Customer for the additional Hubble Subscription Fees (as defined in Section 17 below) through the end of the current Subscription Period.
6. Hubble Software Maintenance and Support. EFZI, LLC offers maintenance and support services for the Hubble Software (“Support”) subject to the payment of Subscription Fees for the Hubble Software.
Support will be provided under the terms of this Agreement as further modified by the published Service Level Policies for the Hubble Software listed on the Order Form in effect at the beginning of each Renewal Term. The “Service Level Policies” set out EFZI, LLC’s standard service levels and are incorporated into this Agreement by reference.
7. Customer Responsibilities. Customer shall have sole responsibility for ensuring that Customer’s use of the Hubble Software to process its data or information complies with the terms of any third party software or database license terms. Customer is responsible for undertaking the proper supervision, control and management of its use of the Hubble Software and any New Releases, including, but not limited to: (a) assuring proper Supported Environment configuration, Hubble Software installation and operating methods; (b) installing and operating the Hubble Software and any New Releases in conformity with any instructions received from EFZI, LLC; and (c) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction. Customer is responsible for maintaining a procedure external to the Hubble Software for reconstruction of lost or altered files, data and programs.
Customer is required to notify EFZI, LLC prior to transferring any Users or the Hubble Software outside of the use location specified on the Order Form (“Use Location”). Additional Subscription Fees may be due upon the transfer of the Hubble Software or Users outside the Use Location. Such additional amounts due will be billed and payable in accordance with the terms of this Agreement. In no event, however, will a transfer of Hubble Software or Users result in a refund of Subscription Fees to the Customer.
8. Fees and Payment Terms. Customer agrees to pay EFZI, LLC the Subscription Fees for each Billing Period in advance as specified in each Order Form. All Subscription Fees under this Agreement and the relevant Order Forms are due and payable in the currency specified on the Order Form upon receipt of the invoice, unless otherwise provided for on the Order Form. Without prejudice to any other right and remedies of EFZI, LLC, unpaid invoices shall accrue interest at the rate of the lesser of 1½% per month or the highest rate allowed by law, commencing thirty (30) days from the due date of such invoice.
9. Suspension of Hubble Software and Support. If any amounts, fees or charges payable by Customer are thirty (30) days or more overdue, EFZI, LLC may, without limiting its other rights and remedies, suspend access to the Hubble Software and Support until such amounts are paid in full (together with any interest accrued).
10. Warranty. EFZI, LLC warrants to Customer that the unmodified Hubble Software will contain no Defects for a period of ninety (90) days after delivery, provided that the Hubble Software is properly installed and used by Customer in accordance with the Documentation. The entire liability of EFZI, LLC and the exclusive remedy of Customer for breach of the warranty is limited, at EFZI, LLC’s option, to: (a) replacement of the Hubble Software; (b) repair of the Hubble Software; or (c) termination of this Agreement and refund of the Subscription Fees prepaid by Customer in accordance with Section 16. EFZI, LLC, INSIGHTSOFTWARE.COM AND THEIR THIRD PARTY SUPPLIERS MAKE NO DIRECT WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER UNDER THIS AGREEMENT. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM WARRANT THAT THE USE OF THE PRODUCTS SHALL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, COURSE OF PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
MANY FACTORS NOT WITHIN THE CONTROL OF EFZI, LLC ORINSIGHTSOFTWARE.COM, SUCH AS PROCESSING VOLUMES, INTERNAL NETWORK INFRASTRUCTURE AND CAPACITY, AND USER BEHAVIOR CAN AFFECT THE PERFORMANCE OF THE SOFTWARE. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM MAKE ANY WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE HUBBLE SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER.
11. Infringement Indemnification. EFZI, LLC agrees to defend Customer and to pay any judgments, costs and expenses, or amounts paid in settlement to which EFZI, LLC agrees, which Customer may sustain as the result of any claim by a third party that the Hubble Software by itself and in unmodified form infringes or misappropriates such third party’s (i) duly issued patent existing or issued prior to the initial delivery date of the applicable Hubble Software, or (ii) copyright, or trade secrets existing as of the delivery date of the applicable Hubble Software. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than Supported Program(s); (b) the use of Hubble Software that has been modified or merged with other programs by the Customer and the claim arises from such modification or merger; or (c) the use of the Hubble Software in combination with other software or hardware not provided under this Agreement or approved by EFZI, LLC in its Documentation and such combination gives rise to the alleged infringement.
In the event of a claim for indemnification, Customer must:
(a) Notify EFZI, LLC in writing of the suit or claim within ten (10) days after receiving notice;
(b) Give EFZI, LLC sole authority to defend or settle the suit or claim; and
(c) Reasonably cooperate and assist EFZI, LLC (at EFZI, LLC. expense) with defense of the suit or claim.
12. Remedies for Infringement. If the Hubble Software becomes or in EFZI, LLC's opinion is likely to become the subject of a suit or claim of infringement of an intellectual property right, EFZI, LLC will, at EFZI, LLC’s option and expense:
(a) Procure for the Customer the right to continue use of the Hubble Software as furnished;
(b) Replace or modify the Hubble Software to make it non-infringing, provided that the Hubble Software still substantially conforms to the applicable Documentation; or
(c) If EFZI, LLC is not reasonably able to do either (a) or (b), terminate this Agreement and/or the related Order Form(s) to the extent it relates to the infringing Hubble Software. In the event that this Agreement and/or Order Form(s) is terminated under this subsection (c), Customer must cease to use the infringing Hubble Software, and EFZI, LLC will pay Customer, as Customer’s sole and exclusive remedy, an amount equal to the prepaid Subscription Fees calculated commencing with the termination date.
13. Term This Agreement commences on the Effective Date and remains in effect until the expiration of the final Subscription Period unless earlier terminated as set forth in Section 16 (the “Term”).
14. Termination. Customer may terminate this Agreement in its entirety at any time upon thirty (30) days written notice to EFZI, LLC. Either party may terminate this Agreement, upon written notice, for any material breach (including the failure to pay Subscription Fees when due) that the breaching party fails to cure within thirty (30) days following written notice specifying the breach. If the breach is incapable of cure, the termination shall be effective upon notice to the breaching party. In the event of termination of this Agreement for any cause, the license to use the Hubble Software shall be immediately revoked and all Hubble Software and supporting materials will be returned to EFZI, LLC within ten (10) days or destroyed and an affidavit supplied to EFZI, LLC certifying destruction. Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief and return or destruction of the Hubble Software. Such termination shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
15. Renewal of Subscription Period. Each Subscription Period shall automatically renew for additional periods equal to one (1) year unless a party gives the notice to the other party of non-renewal at least thirty (30) days before the end of the relevant Subscription Period. The pricing for any subsequent Subscription Period will remain the unchanged for the same Hubble Software unless EFZI, LLC provides Customer written notice of a pricing increase for the next Subscription Period at least sixty (60) days prior to the expiration of the then current Subscription Period.
16. Refund or Payment upon Termination. Upon any termination for cause by Customer or a termination under Section 12, EFZI, LLC shall refund Customer any prepaid fees covering the remainder of the Subscription Period after the effective date of termination. Upon any termination for cause by EFZI, LLC, Customer shall pay any unpaid fees covering the remainder of the Term after the effective date of termination.
17. Additional Definitions.
“Billing Period” means the agreed upon intervals for which EFZI, LLC will invoice Customer for the Hubble Services, as specified on the Order Form(s).
“Defect” means a reproducible defect in the Hubble Software when operated on a Supported Environment that causes the Hubble Software not to operate substantially in accordance with the Documentation.
“Hubble Software” means the products licensed by EFZI, LLC to Customer that are listed on an executed Order Form(s) and all New Releases related thereto.
“New Release” means a Major Release of, or Service Pack for, the Hubble Software that is made generally available by insightsoftware.com in its sole discretion and which is provided at no additional charge to those customers subscribing to Support. A New Release shall not include any release, option or future product that insightsoftware.com licenses separately. “Major Release” and “Service Pack” are defined in the Service Level Policies.
“Subscription Fee” means the fee specified on an Order Form(s) for use of the Hubble Services, which may also include usage-based fees.
“Subscription Period” means the period for which Customer has committed to subscribe to the Hubble Services as indicated on the Order Form(s).
“Subscription Start Date” means the date specified on the Order Form for the commencement of the use of the Hubble Software.
“Supported Environment(s) means the technical environment that adheres to the insightsoftware.com published minimum technical requirements (MTRs) for the specific Support Program as published on insightsoftware.com’s Community Portal™ or any successor website.
“Supported Program(s)” shall mean all versions of the Hubble Software for which Support is offered pursuant to the then current Service Level Policies in effect.
END OF DOCUMENT
These Hubble Software Subscription Terms, the General Terms and Conditions incorporated by reference herein and the Order Form(s) (collectively, the “Agreement”) are made and entered into as of the Order Date of the first Order Form (the “Effective Date”) executed between (a) the EFZI, LLC entity identified in the General Terms and Conditions (such entity to be referred to herein as “EFZI, LLC”), and (b) the entity described in such Order Form (“Customer”). The terms and conditions of the Agreement shall govern the Hubble Software and Support to be provided by EFZI, LLC. Any current or future Order Form referencing these Hubble Software Subscription Terms shall be considered incorporated by reference into the Agreement. The terms of the Hubble Software Subscription Terms and the General Terms and Conditions shall take precedence over any inconsistent terms contained in an Order Form, except when the parties agree otherwise by making specific reference on the Order Form to the provisions that will be modified or changed. Capitalized terms are as defined below and in the General Terms and Conditions.
1. Grant of License from EFZI, LLC to Customer. Subject to the terms and conditions contained in this Agreement, EFZI, LLC grants to Customer and its Affiliates a limited non-exclusive, non-transferable, license to the Hubble Software in object code only, including associated Documentation, listed on one or more Order Form(s). This license includes only the rights expressly granted in this Agreement, which include the right to:
(a) Install and use the Hubble Software for use by no more than the number of Users designated in the Order Form;
(b) Make a reasonable number of copies of the Hubble Software and Documentation for backup, archival and disaster recovery purposes only; and
(c) Copy and distribute the Documentation solely to Users.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by EFZI, LLC regarding future functionality or features of the Hubble Software. Customer may only use the Hubble Software that Customer has licensed from EFZI, LLC under this Agreement, even though, upon download, the Hubble Software may contain additional applications or modules.
2. Third Party Hosting. Customer may, at its option and expense, allow a third party to host the Hubble Software on its computers on Customer’s behalf. Customer is responsible for ensuring that the hosting entity complies with the terms and conditions of this Agreement and Customer is fully responsible to EFZI, LLC for the acts and omissions of such hosting entity as it relates to its compliance with the terms of this Agreement. Customer is liable for any additional Subscription Fees due to EFZI, LLC in the event the hosting entity exceeds the number of Users licensed or otherwise exceeds the scope of the license granted by this Agreement.
3. License Restrictions. Customer agrees not to and shall not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Hubble Software or Documentation; (b) merge the Hubble Software with other software; (c) license, sublicense, sell, resell, transfer, distribute or otherwise transfer, or commercially exploit or make available the Hubble Software or Documentation to any third party; (d) use the Hubble Software to process the data of or otherwise benefit third parties; (e) reverse engineer, remanufacture, decompile, disassemble, or otherwise attempt, in whole or in part, to derive the source code for the Hubble Software; (f) unbundle and/or use separately any third party components of the Hubble Software; or (g) otherwise use or copy the Hubble Software or Documentation except as expressly allowed under this Agreement.
4. Delivery, License Key and Shipping. EFZI, LLC will provide, or cause to provide, to Customer one copy of the Hubble Software in electronic (downloadable) form and a License Key to access the Hubble Software. Customer’s Hubble Software will be initiated by a thirty (30) day License Key starting from the Subscription Start Date pending payment of the Subscription Fee for the initial Billing Period. The License Key is time-sensitive and deactivates the Hubble Software upon a date corresponding with the beginning of the next Billing Period plus seven (7) days. EFZI, LLC agrees to provide, or cause to provide and/or activate, or cause to activate, the License Key for each subsequent Billing Period within forty-eight (48) hours of receiving payment of the Subscription Fee for the relevant Billing Period. EFZI, LLC is not liable for costs or damages associated with the expiry of the License Key caused by a failure of Customer to timely a) remit the Subscription Fees or b) install the License Key properly as provided to it by EFZI, LLC. The License Key may only be used on one computer server and as otherwise permitted under Section 1 of this Agreement. The Hubble Software is deemed accepted by Customer upon delivery and Customer has no right to return the Hubble Software.
5. Licenses for Additional Products and Users. Customer may license additional EFZI, LLC software products or additional Users for the Hubble Software by entering into a written Order Form signed by both parties. Upon receipt and acceptance of an Order Form, EFZI, LLC will deliver, or cause to deliver, to Customer, pursuant to the terms of this Agreement, the additional Hubble Software and/or License Key for additional Users. EFZI, LLC shall invoice Customer for the additional Hubble Subscription Fees (as defined in Section 17 below) through the end of the current Subscription Period.
6. Hubble Software Maintenance and Support. EFZI, LLC offers maintenance and support services for the Hubble Software (“Support”) subject to the payment of Subscription Fees for the Hubble Software.
Support will be provided under the terms of this Agreement as further modified by the published Service Level Policies for the Hubble Software listed on the Order Form in effect at the beginning of each Renewal Term. The “Service Level Policies” set out EFZI, LLC’s standard service levels and are incorporated into this Agreement by reference.
7. Customer Responsibilities. Customer shall have sole responsibility for ensuring that Customer’s use of the Hubble Software to process its data or information complies with the terms of any third party software or database license terms. Customer is responsible for undertaking the proper supervision, control and management of its use of the Hubble Software and any New Releases, including, but not limited to: (a) assuring proper Supported Environment configuration, Hubble Software installation and operating methods; (b) installing and operating the Hubble Software and any New Releases in conformity with any instructions received from EFZI, LLC; and (c) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction. Customer is responsible for maintaining a procedure external to the Hubble Software for reconstruction of lost or altered files, data and programs.
Customer is required to notify EFZI, LLC prior to transferring any Users or the Hubble Software outside of the use location specified on the Order Form (“Use Location”). Additional Subscription Fees may be due upon the transfer of the Hubble Software or Users outside the Use Location. Such additional amounts due will be billed and payable in accordance with the terms of this Agreement. In no event, however, will a transfer of Hubble Software or Users result in a refund of Subscription Fees to the Customer.
8. Fees and Payment Terms. Customer agrees to pay EFZI, LLC the Subscription Fees for each Billing Period in advance as specified in each Order Form. All Subscription Fees under this Agreement and the relevant Order Forms are due and payable in the currency specified on the Order Form upon receipt of the invoice, unless otherwise provided for on the Order Form. Without prejudice to any other right and remedies of EFZI, LLC, unpaid invoices shall accrue interest at the rate of the lesser of 1½% per month or the highest rate allowed by law, commencing thirty (30) days from the due date of such invoice.
9. Suspension of Hubble Software and Support. If any amounts, fees or charges payable by Customer are thirty (30) days or more overdue, EFZI, LLC may, without limiting its other rights and remedies, suspend access to the Hubble Software and Support until such amounts are paid in full (together with any interest accrued).
10. Warranty. EFZI, LLC warrants to Customer that the unmodified Hubble Software will contain no Defects for a period of ninety (90) days after delivery, provided that the Hubble Software is properly installed and used by Customer in accordance with the Documentation. The entire liability of EFZI, LLC and the exclusive remedy of Customer for breach of the warranty is limited, at EFZI, LLC’s option, to: (a) replacement of the Hubble Software; (b) repair of the Hubble Software; or (c) termination of this Agreement and refund of the Subscription Fees prepaid by Customer in accordance with Section 16. EFZI, LLC, INSIGHTSOFTWARE.COM AND THEIR THIRD PARTY SUPPLIERS MAKE NO DIRECT WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER UNDER THIS AGREEMENT. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM WARRANT THAT THE USE OF THE PRODUCTS SHALL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, COURSE OF PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
MANY FACTORS NOT WITHIN THE CONTROL OF EFZI, LLC ORINSIGHTSOFTWARE.COM, SUCH AS PROCESSING VOLUMES, INTERNAL NETWORK INFRASTRUCTURE AND CAPACITY, AND USER BEHAVIOR CAN AFFECT THE PERFORMANCE OF THE SOFTWARE. NEITHER EFZI, LLC NOR INSIGHTSOFTWARE.COM MAKE ANY WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE HUBBLE SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER.
11. Infringement Indemnification. EFZI, LLC agrees to defend Customer and to pay any judgments, costs and expenses, or amounts paid in settlement to which EFZI, LLC agrees, which Customer may sustain as the result of any claim by a third party that the Hubble Software by itself and in unmodified form infringes or misappropriates such third party’s (i) duly issued patent existing or issued prior to the initial delivery date of the applicable Hubble Software, or (ii) copyright, or trade secrets existing as of the delivery date of the applicable Hubble Software. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than Supported Program(s); (b) the use of Hubble Software that has been modified or merged with other programs by the Customer and the claim arises from such modification or merger; or (c) the use of the Hubble Software in combination with other software or hardware not provided under this Agreement or approved by EFZI, LLC in its Documentation and such combination gives rise to the alleged infringement.
In the event of a claim for indemnification, Customer must:
(a) Notify EFZI, LLC in writing of the suit or claim within ten (10) days after receiving notice;
(b) Give EFZI, LLC sole authority to defend or settle the suit or claim; and
(c) Reasonably cooperate and assist EFZI, LLC (at EFZI, LLC. expense) with defense of the suit or claim.
12. Remedies for Infringement. If the Hubble Software becomes or in EFZI, LLC's opinion is likely to become the subject of a suit or claim of infringement of an intellectual property right, EFZI, LLC will, at EFZI, LLC’s option and expense:
(a) Procure for the Customer the right to continue use of the Hubble Software as furnished;
(b) Replace or modify the Hubble Software to make it non-infringing, provided that the Hubble Software still substantially conforms to the applicable Documentation; or
(c) If EFZI, LLC is not reasonably able to do either (a) or (b), terminate this Agreement and/or the related Order Form(s) to the extent it relates to the infringing Hubble Software. In the event that this Agreement and/or Order Form(s) is terminated under this subsection (c), Customer must cease to use the infringing Hubble Software, and EFZI, LLC will pay Customer, as Customer’s sole and exclusive remedy, an amount equal to the prepaid Subscription Fees calculated commencing with the termination date.
13. Term This Agreement commences on the Effective Date and remains in effect until the expiration of the final Subscription Period unless earlier terminated as set forth in Section 16 (the “Term”).
14. Termination. Customer may terminate this Agreement in its entirety at any time upon thirty (30) days written notice to EFZI, LLC. Either party may terminate this Agreement, upon written notice, for any material breach (including the failure to pay Subscription Fees when due) that the breaching party fails to cure within thirty (30) days following written notice specifying the breach. If the breach is incapable of cure, the termination shall be effective upon notice to the breaching party. In the event of termination of this Agreement for any cause, the license to use the Hubble Software shall be immediately revoked and all Hubble Software and supporting materials will be returned to EFZI, LLC within ten (10) days or destroyed and an affidavit supplied to EFZI, LLC certifying destruction. Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief and return or destruction of the Hubble Software. Such termination shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
15. Renewal of Subscription Period. Each Subscription Period shall automatically renew for additional periods equal to one (1) year unless a party gives the notice to the other party of non-renewal at least thirty (30) days before the end of the relevant Subscription Period. The pricing for any subsequent Subscription Period will remain the unchanged for the same Hubble Software unless EFZI, LLC provides Customer written notice of a pricing increase for the next Subscription Period at least sixty (60) days prior to the expiration of the then current Subscription Period.
16. Refund or Payment upon Termination. Upon any termination for cause by Customer or a termination under Section 12, EFZI, LLC shall refund Customer any prepaid fees covering the remainder of the Subscription Period after the effective date of termination. Upon any termination for cause by EFZI, LLC, Customer shall pay any unpaid fees covering the remainder of the Term after the effective date of termination.
17. Additional Definitions.
“Billing Period” means the agreed upon intervals for which EFZI, LLC will invoice Customer for the Hubble Services, as specified on the Order Form(s).
“Defect” means a reproducible defect in the Hubble Software when operated on a Supported Environment that causes the Hubble Software not to operate substantially in accordance with the Documentation.
“Hubble Software” means the products licensed by EFZI, LLC to Customer that are listed on an executed Order Form(s) and all New Releases related thereto.
“New Release” means a Major Release of, or Service Pack for, the Hubble Software that is made generally available by insightsoftware.com in its sole discretion and which is provided at no additional charge to those customers subscribing to Support. A New Release shall not include any release, option or future product that insightsoftware.com licenses separately. “Major Release” and “Service Pack” are defined in the Service Level Policies.
“Subscription Fee” means the fee specified on an Order Form(s) for use of the Hubble Services, which may also include usage-based fees.
“Subscription Period” means the period for which Customer has committed to subscribe to the Hubble Services as indicated on the Order Form(s).
“Subscription Start Date” means the date specified on the Order Form for the commencement of the use of the Hubble Software.
“Supported Environment(s) means the technical environment that adheres to the insightsoftware.com published minimum technical requirements (MTRs) for the specific Support Program as published on insightsoftware.com’s Community Portal™ or any successor website.
“Supported Program(s)” shall mean all versions of the Hubble Software for which Support is offered pursuant to the then current Service Level Policies in effect.
END OF DOCUMENT