Service & Support Agreement
1.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
1.2.1 Insite has and will retain sole control over the operation, provision, and management of the Services and Insite Materials, including the: (a) Insite Systems; (b) location(s) where any of the Services are performed; (c) selection, deployment, modification and replacement of the Software Services; and (d) performance of Support Services and Service upgrades, corrections and repairs; and
1.2.2 Customer has and will retain sole control over the operation, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Insite Materials by any person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (a) information, instructions or materials provided by any of them to the Services or Insite; (b) results obtained from any use of the Services or Insite Materials; and (c) conclusions, decisions or actions based on such use.
1.3 Changes. Insite reserves the right, in its sole discretion, to make any changes to the Software Services and Documentation that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Insite’s services to its customers; (ii) the competitive strength of or market for Insite’s services; or (iii) the Software Services cost efficiency or performance; or (b) comply with applicable law.
1.4 Suspension of Use. Insite may, directly or indirectly, and by use of any lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other person’s access to or use of all or any part of the Software Services or Insite Materials and/or cease any Implementation Services, without incurring any resulting obligation or liability, if: (a) Insite receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Insite to do so; or (b) Insite believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Software Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.4 does not limit any of Insite’s other rights or remedies, whether at law, in equity or under this Agreement.
2. Permitted Use and Restrictions.
2.2 Restrictions on Use. Customer shall not, and shall ensure that no Authorized User or other third party who has access to the Software Services is permitted to: (a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software Services by any means whatsoever; (b) remove any product identification, copyright, or other notices; (c) provide, lease, lend, use, rent, share access to, or otherwise allow third parties to access or use the Software Services other than as expressly permitted herein; (d) incorporate into other software, or create a derivative work of any part of the Software Services; (e) configure the Software Services other than as permitted by the Documentation; (f) copy or otherwise reproduce or modify the Documentation except as expressly permitted herein; (g) access or use the Software Service as part of a timesharing or service bureau arrangement without express written consent of Insite; (h) falsely state or otherwise misrepresent an affiliation with a person or organization; (i) engage in any activities or manipulate identifying material to misrepresent the origin of content; (j) use the Software Services to disseminate, post or otherwise make available any information or content, including by e-mail, that is subject to any disclosure restrictions, unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or infringes or otherwise violates any patent, copyright or trademark, or information or content that is objectionable, harmful or false; nor (k) interfere with or otherwise limit the use of the Software Services or Insite’s networks by other users; or collect, compile, or store personal information about other users of the Software Services or Insite’s networks; (l) disrupt or interfere with the security of, or otherwise cause harm to, the Software Services or Insite’s networks; accounts; usernames and passwords; servers; or other networks connected to or accessible through the hosting services or any affiliated or linked sites; nor (m) use the Software Services in any manner that transmits software viruses or any other corrupt computer code, files or programs that impair the use of any computer software or hardware or telecommunications equipment.
2.3 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Software Services, Insite Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Insite Materials and the Third Party Materials are and will remain with Insite and the respective rights holders in the Third Party Materials.
3. Support and Service Levels
4. Fees and Payment
4.2 Payment. Unless otherwise specified in an Order Form or Statement of Work: (a) all Fees are due within thirty (30) days from date of invoice in immediately available funds; (b) all prices are stated in U.S. Dollars; and (c) interest shall accrue on past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. If any invoice for Fees are not timely paid, without limiting its rights and remedies under this Agreement, Insite shall be entitled to suspend access to and use of the applicable Software Services and cease and Implementation Services as set forth in Section 1.4 until such payment is made in full.
4.3 Other Fees. Fees do not include travel and living expenses for services and training. To the extent applicable, Implementation Services and the corresponding charges shall be set forth in a separate Statement of Work.
4.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Insite’s income.
4.5 No Setoffs. All amounts payable to Insite under this Agreement shall be paid by Customer to Insite in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Subscription Credits issued pursuant to the SLA or any deduction or withholding of tax as may be required by applicable Law).
4.6 Customer Usage. Insite shall have the right to review Customer Data to ensure Customer usage complies with volume levels and pricing as set forth in the applicable Order Form. Insite shall have the right to upgrade Customer pricing as set forth in the Order Form.
5. Customer Responsibilities
5.2 Customer Responsibilities. Customer has and will retain sole responsibility for: (a) providing personnel trained in the operation and use of the Software Services; (b) providing such materials, items, information and reasonable assistance as may be necessary to enable Insite to provide the Software Services or access and use by Customer; (c) responding in a timely manner to requests for information made by Insite in connection with the use of the Software Services; (d) ensuring that all communications technology connections (including Internet access) are present, operating correctly, and appropriate for the operation of the Software Services; (e) all Customer Content, including its accuracy, content and use; (f) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (g) Customer Systems; (h) the security and use of Customer’s and its Authorized Users’ Access Credentials; (i) all access to and use of the Services and Insite Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use; and (j) implementing any required safeguards for compliance to applicable data protection and privacy laws. Insite is not responsible for any delay, damage or loss cause by third-party software, hardware or systems.
5.3 Professional Services. Unless Insite agrees otherwise in writing, Customer shall only engage Insite or a Certified Services Provider for any third-party technical or development services not performed by Customer trained personnel related to the use of the Software Services or the development of any custom enhancements.
5.4 No Liability. Insite shall have no liability or responsibility for any failure of Customer to perform any of its obligations or for any delays in performance by Insite caused by any failure of Customer to perform any of its obligations under Section 5.2.
6. Data Security
6.2 Compliance. Insite shall implement administrative, physical and technical safeguards to protect Customer Data that are no less rigorous than accepted industry best practices and shall ensure that all such safeguards, including the manner in which Customer Data is collected, accessed, used, stored, processed, disposed of and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement. If, in the course of providing the Software Services to Customer, Insite has access to or will collect, access, use, store, process, dispose of or disclose credit, debit or other payment cardholder information, Insite shall implement the Payment Card Industry Data Security Standard (“PCI DSS”) requirements and provide upon request Insite’s attestation of compliance.
6.3 Safeguards. At a minimum, Insite’s safeguards for the protection of Customer Data shall include: (a) limiting access of Customer Data to Insite employees, affiliates and contractors; (b) securing business facilities, data centers, paper files, servers, back-up systems and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (c) implementing network, device application, database and platform security; (d) securing information transmission, storage and disposal; (e) implementing authentication and access controls within media, applications, operating systems and equipment; (f) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (g) providing appropriate privacy and information security training to Insite’s employees.
6.4 Reporting Requirements. In the event Insite or any of its representatives becomes aware of unauthorized access to, or has reason to believe that there was unauthorized access to, or a data breach involving Customer Data, Insite will promptly (a) notify Customer of the unauthorized access; and (b) cooperate with any Customer investigation, analysis, notification and mitigation activities.
6.5 Response Plan. Insite shall maintain a commercially reasonable data security breach response plan and security safeguards reasonably necessary to prevent unauthorized persons from accessing, using, disclosing, or otherwise committing any act that could breach or compromise the privacy, availability, integrity, or content of the Customer Data. In the event Insite or any of its representatives becomes aware of any unauthorized access to, use or disclosure of, or potential access to or use or disclosure of any Customer Data while it is in the possession of Insite or its subcontractors (a “Data Breach“), Insite agrees to (a) promptly notify Customer of the unauthorized access, use, or disclosure; (b) cooperate with any Customer investigation, analysis, notification and mitigation activities; (c) promptly investigate the Data Breach; perform a root cause analysis and prepare a corrective action plan; provide written reports of its findings and proposed corrective action plan to Customer; and (d) upon Customer’s approval, implement the corrective action plan, remediate the Data Breach, and take commercially reasonable actions to prevent its recurrence.
6.6 Customer Audits. Upon the Customer’s written request, to confirm compliance with this Agreement, as well as any applicable laws and industry standards, Insite shall promptly and accurately complete a written information security questionnaire provided by Customer or a third party on the Customer’s behalf regarding Insite’s business practices and information technology environment in relation to all Customer Data being handled and/or services being provided by Insite to Customer pursuant to this Agreement. Insite shall fully cooperate with such inquiries. Customer shall treat the information provided by Insite in the security questionnaire as Insite’s Confidential Information.
7. Term and Termination
7.2 Termination for Breach. Either party may terminate this Agreement and any or all Order Forms if the other party is in material breach of this Agreement or an Order Form and fails to cure such breach, if curable, within thirty (30) calendar days of written notice thereof. Breaches of Section 2 by Customer or its Authorized Users and breaches of Section 8 by either party shall be deemed material breaches incapable of cure entitling the other party to terminate this Agreement immediately upon written notice thereof to the other party.
7.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
7.3.1 all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
7.3.2 Insite shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (a) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and (b) permanently erase all Customer Data and Customer’s Confidential Information from all systems Insite directly or indirectly controls, provided that, for clarity, Insite’s obligations under this Section 7.3.2 do not apply to any Usage Data;
7.3.3 Customer shall immediately cease all use of any Software Services or Insite Materials and (a) promptly return to Insite, or at Insite’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Insite’s Confidential Information; (b) permanently erase all Insite Materials and Insite’s Confidential Information from all systems Customer directly or indirectly controls; and (c) certify to Insite in a signed written instrument that it has complied with the requirements of this Section 7.3.3;
7.3.4 notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (a) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (b) Insite may retain Customer Data, and in the case of each of subclause (a) and (b) in its then current state and solely to the extent and for so long as required by applicable law; (c) Insite may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (d) all information and materials described in this Section 7.3.4 will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
7.3.5 Insite may disable all Customer and Authorized User access to the Software Services and Insite Materials;
7.3.6 if Customer terminates this Agreement for breach by Insite pursuant to Section 7.2, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Insite will: (a) refund to Customer Fees paid in advance for Software Services that Insite has not performed as of the effective date of termination; and (b) pay to Customer any unpaid Service Credits to which Customer is entitled;
7.3.7 if Insite terminates this Agreement for breach by Customer pursuant to Section 7.2, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Insite’s invoice therefor.
7.4 Survival. The following terms shall survive termination of this Agreement: Sections 2 (except as provided in Section 7.4 and subject to Customer’s continued compliance with the terms and conditions of this Agreement), 7, 8, 12, 13, 14, and all capitalized terms defined in Section 15 and elsewhere in this Agreement.
8.2 Customer Data.
8.2.1 Except for the rights expressly granted hereunder, Customer retains all right, title and interest in and to all Customer Records and Customer Content. Customer hereby grants to Insite, during the term of the Agreement and during any termination transition period, a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable and transferable right and license: (a) to access, host, modify, display and use Customer Records and Customer Content for the purposes of delivering the Software Services and performing its obligations under this Agreement; (b) to host, copy, display, modify, translate, perform and prepare derivative works of any work of authorship or other copyrighted work for the purposes of delivering the Software Services and performing its obligations under this Agreement; and (c) to display and use any trademark provided by Customer. Insite agrees to adhere to Customer’s reasonable guidelines regarding use of Customer’s trademarks in connection with the Software Services and as permitted under Section 14.11.
8.2.2 Backup and Recovery of Customer Records and Customer Content. As a part of the Services, Insite is responsible for maintaining a backup of Customer Records and Customer Content, for an orderly and timely recovery of such data in the event that the Services may be interrupted.
8.2.3 Acceptable use of Customer Data. Insite will not collect, use or transfer any Customer Data beyond the scope of the Software Services without prior written approval from Customer.
8.2.4 Regionality. Unless otherwise specified in an Order Form, Insite will not store and process any Customer Data outside of the North America, other than digital assets such as images and documents stored in a content delivery network which, by design, is distributed worldwide for performance.
8.4 Suggestions. Customer hereby grants to Insite a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software Services any suggestions, recommendations or other feedback provided by Customer or its personnel relating to the operation, features or functionality of the Software Services.
9. Professional Services
9.2 Extensions & Ownership. As Insite undertakes to satisfy the requirements identified in any Statement of Work, it will be at Insite’s sole discretion to build such functionality and incorporate it into the base software system which may then be available to other Insite customers. Unless specifically identified as (a) both proprietary and Customer owned IP within the Statement of Work and (b) executed solely as an extension to the base platform and not incorporated therein, Insite will retain ownership to all Customizations and it will not be considered a “work made for hire” under the United States Copyright Act (Title 17 U.S. Code). If a custom developed extension is explicitly identified as both proprietary and Customer owned IP (a “Proprietary Extension”), then such Proprietary Extension will be owned by Customer and will be covered as a work for hire.
9.3 Residuals. Notwithstanding anything in this Agreement to the contrary, Insite shall be free to use for any purpose the Residuals resulting from its work on the Implementation Services. “Residuals” means information in intangible form, which may be retained by persons performing the Implementation Services such as ideas, concepts, know-how and techniques that do not contain Customer Content.
9.4 Changes. Either party may request changes to a Statement of Work. In such event, the requesting party shall provide a written description of the changes, and the parties shall consult and cooperate with each other in good faith to discuss the change and any change in costs, scheduling modifications, and other implications of the proposed changes. Any requested change shall be effective only upon mutual execution of a written change order or amendment to a Statement of Work, at which time it shall become part of the applicable Statement of Work.
9.5 Implementation Services Warranty. Insite represents and warrants to Customer that if the parties mutually execute a Statement of Work for Implementation Services, it will perform the Implementation Services described therein in a professional and workmanlike manner, will meet the requirements set forth in the applicable Statement of Work in all material respects and that, when accepted pursuant to the applicable Statement of Work, will be in material conformance with the agreed upon functional and technical specifications.
10. Mutual Representations and Warranties
11. Limited Warranty and Disclaimers
11.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SOFTWARE SERVICES, IMPLEMENTATION SERVICES AND CUSTOMIZATIONS ARE PROVIDED TO CUSTOMER “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INSITE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES THAT (A) THE SOFTWARE SERVICES, IMPLEMENTATION SERVICES AND CUSTOMIZATIONS WILL BE PROVIDED IN AN ERROR FREE OR UNINTERRUPTED MANNER; (B) THE SOFTWARE SERVICES, IMPLEMENTATION SERVICES AND CUSTOMIZATIONS WILL SATISFY ALL OF CUSTOMER’S REQUIREMENTS; (C) THE RESULTS OBTAINED FROM THE USE OF THE SOFTWARE SERVICES, IMPLEMENTATION SERVICES AND CUSTOMIZATIONS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; OR (D) ANY ERRORS OR DEFECTS IN THE SOFTWARE SERVICES, IMPLEMENTATION SERVICES AND CUSTOMIZATIONS WILL BE CORRECTED.
11.3 Limitations on Liability. EXCEPT FOR BREACHES OF SECTIONS 2, 4 AND 12 AND EXCEPT FOR THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 13, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS, LOSS OF USE OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR BREACHES OF SECTIONS 2 AND 12 AND EXCEPT FOR THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 13, EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS OR LOSSES ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO INSITE DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
11.4 Insurance. During the term of this Agreement Insite will obtain and maintain in full force and effect a policy or policies of insurance covering (a) workers compensation and disability insurance not less any applicable statutory minimum; (b) commercial general liability insurance with minimum limits of One Million Dollars ($1,000,000) per occurrence; and (c) technology errors and omissions insurance with limits of at least One Million Dollars ($1,000,000).
12. Confidentiality and Obligations
12.2 Obligations of the Parties. The Recipient shall hold the Discloser’s Confidential Information in strict confidence and shall use reasonable security measures as defined in Section 6.3 to protect such information from unauthorized disclosure to third parties, including but not limited to such measures as the Recipient uses to protect its own Confidential Information. The Confidential Information shall only be disclosed to a party’s employees, affiliates, contractors and subcontractors who are bound by written obligations of confidentiality consistent with this Agreement and who have a good faith need to know such Confidential Information in order to perform such party’s obligations under this Agreement and only to the extent necessary for such purposes; provided, that such Recipient shall be responsible for any breach of those confidentiality provisions by its employees and subcontractors. Neither party shall have any ownership rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information at the other party’s request. If the parties have entered into any other confidentiality and non-disclosure agreement prior to the Effective Date or do so after the Effective Date, the provisions shall be construed in a manner to provide the greatest protection to the parties’ confidential information.
12.3 Legal Process. Notwithstanding the foregoing, Recipient shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, the Recipient advises the Discloser of the request prior to making such disclosure in order that the Discloser may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
13.2 Indemnification by Customer. For so long as Customer uses the Software Services, except to the extent Insite is obligated to provide indemnification under Section 13.1, Customer shall defend, indemnify, and hold harmless Insite and its officers, directors, shareholders, agents, and employees from damage awards, legal costs, and reasonable attorneys’ fees arising out of or from claims made or brought against Insite by a third party relating to: (a) any unauthorized or improper use of the Software Services by Customer, its Authorized Users or any third party given access to the Software Services by Customer or its representatives or agents; or (b) materials owned by or furnished by Customer under this Agreement or, if applicable, under a Professional Services Agreement, including Customer Data.
13.3 Data Security. Insite agrees to indemnify and hold harmless Customer, its affiliates, and each of their respective officers, directors, employees, representatives, and agents from and against any and all costs, losses, liabilities (including, without limitation, regulatory or industry fines), or expenses (including, without limitation, reasonable attorneys’ fees), arising out of or related to a third party claim arising from Insite’s or its subcontractors’, agents’, or employees’ breach of Section 6. Similarly, Customer agrees to indemnify and hold harmless Insite, its affiliates, and each of their respective officers, directors, employees, representatives, and agents from and against any and all costs, losses, liabilities, or expenses arising out of or related to a third party claim arising from Customer’s customizations or extensions of Software Services that result in a breach of obligations under Section 6.1.
13.4 Procedures. The party seeking to be indemnified pursuant to this Section 13 (as applicable, the “Indemnified Party”) shall be entitled to indemnification hereunder only (a) if such party gives written notice to the party with the indemnification obligation hereunder (the “Indemnifying Party”) of any claims, suits or proceedings by third parties which may give rise to a claim for indemnification promptly after receiving written notice of such claim (or, in the case of a proceeding, is served in such proceeding); provided, however, that failure to give such notice shall not relieve the Indemnifying Party of its obligation to provide indemnification, except if and to the extent that the Indemnifying Party is prejudiced thereby, and (b) once the Indemnifying Party confirms in writing to the Indemnified Party that it is prepared to assume its indemnification obligations hereunder, the Indemnifying Party has sole control over the defense of the claim, at its own cost and expense; provided, however, that the Indemnified Party shall have the right to be represented by its own counsel at its own cost in such matters. Notwithstanding the foregoing, the Indemnifying Party shall not settle or dispose of any such matter in any manner which would require the Indemnified Party to make any admission, or to take any action (except for ceasing use or distribution of the items subject to the claim) without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed. Each party shall reasonably cooperate with the other party and its counsel in the course of the defense of any such suit, claim or demand, such cooperation to include using reasonable efforts to provide or make available documents, information and witnesses and to mitigate damages.
13.5 Infringement Remedies. If (a) a third party brings a claim that the Software Services, a Customization (if applicable) or the use thereof violates the third party’s intellectual property rights (an “IP Claim”), (b) Insite believes an IP Claim is reasonably likely, or (c) Customer’s use of the Software Services or a Customization is enjoined as a result of an IP Claim, Insite may, at its option and expense: (i) obtain a license or grant of rights under the rights that have been infringed; (ii) modify the Software Services or Customization so they are non-infringing or provide to Customer a substitute of the Software Services or any portion thereof that is non-infringing; or (iii) if the foregoing options are not commercially reasonable, terminate this Agreement upon written notice to Customer. If Insite terminates this Agreement pursuant to this Section, Insite shall refund the total subscription Fees to Customer, pro-rated over a five (5) year period from the Effective Date of this Agreement. Customer’s sole and exclusive remedy for termination under this Section shall be payment by Insite of the refund amount provided herein. Section 13.1 and this Section 13.5 state Insite’s sole obligations and Customer’s sole remedies with regard to infringement claims related to the Software Services or a Customization.
14.2 Nature of Relationship. The provisions of this Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between Insite and Customer. Insite and Customer shall conspicuously identify themselves to all persons and organizations as independent contractors and shall not represent or imply to any other person or organization that this Agreement authorizes either Insite or Customer to act as an agent for or on behalf of the other party, other than as provided for in this Agreement. Neither Insite nor Customer shall be obligated by any agreement, representation or warranty made by the other, nor shall Insite or Customer be obligated for damages to any person or organization for personal injuries or property damage directly or indirectly arising out of the conduct of the other party’s business or caused by the other party’s negligence, willful act, or failure to act. As independent contractors, Insite and Customer shall be separately responsible for the payment of their income or other taxes. In addition, Insite and Customer shall be separately responsible for carrying workers’ compensation insurance on themselves and their employees and agents.
14.3 Non-Solicitation. To the extent permitted by applicable law, for the term of this Agreement, and for a period of one (1) year after such period, each party agrees that it shall not knowingly solicit or attempt to solicit any of the other party’s employees. Notwithstanding the foregoing, nothing herein shall prevent either party from hiring as an employee any person who responds to an advertisement for employment placed in the ordinary course of business by that party and/or who initiates contact with that party without any direct solicitation of that person by that party or any agent of that party.
14.4 Force Majeure. Neither Insite nor Customer shall be in breach of this Agreement or any Order Form(s) in the event they are unable to perform their obligations under this Agreement or Order Form(s) (other than the obligation to make payments when due) as a result of a Force Majeure Event.
14.5 Notices. Any notices required or permitted to be given under this Agreement shall be sufficient if in writing and personally delivered or sent by certified mail or express courier to the other party at its address set forth in this Agreement, or at such other address as the parties shall designate in writing by personal delivery, certified mail, or express courier.
14.6 Waiver. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing. Any waiver by either party of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.
14.7 Equitable Remedies. If any dispute arises with respect to the unauthorized use of the Software Services, Confidential Information or other intellectual property of a party by the other party, without limiting its rights and remedies, the aggrieved party may seek any available remedy at law or equity from any court of competent jurisdiction.
14.8 Arbitration. Subject to Section 14.7, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration will be decided by a single arbitrator who is an attorney or judge with substantial experience with commercial software transactions. The award shall be in writing, shall be signed by the arbitrator, and shall include a statement setting forth the reasons for the disposition of any claim. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s and the administrative fees of the arbitration.
14.9 Governing Law. This Agreement shall be governed by the laws of the State of Minnesota, without regard to its conflict of laws rules. Notwithstanding the preceding sentence, any and all matters relating to the copyrights or any other intellectual or industrial property rights hereunder will be governed by the substantive laws of the United States of America.
14.10 Severability. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
14.11 Publicity. During the Term, Insite may use Customer’s name and logo on Insite’s customer lists, on Insite’s website and for other marketing purposes.
14.12 Entire Agreement. This SSA, together with any applicable Order Form(s), and any terms and conditions and attachments or linked agreements thereto, sets forth the entire understanding between the parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement, and no amendments shall be valid unless made in writing and signed by the parties to this Agreement.
15.1 “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
15.2 “Ancillary Fees” means the fees for any ancillary services performed by Insite as set forth on an Order Form, including but not limited to training or other professional services.
15.3 “Authorized User” means an employee, agent, contractor, vendor, supplier, or customer of Customer who is authorized to access and use the Software Services for Customer’s business purposes.
15.4 “Certified Services Provider” means a third party that provides implementation or development services for the Software Services and has been certified or otherwise approved by Insite.
15.5 “Customer Content” means all Customer text, data (including but not limited to pricing and product information), logos, designs, images and other content provided by Customer to Insite for incorporation into the Software Services.
15.6 “Customer Data” means all Customer Content and Customer Records.
15.7 “Customer Records” means Customer’s product information, Customer’s customer records and transaction information and all data provided by users of the Software Services.
15.8 “Customer Integrations” means Customer’s third party software products that shall be integrated to the Software Services through existing Insite APIs.
15.9 “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
15.10 “Customization” means any implementation, customization or extension for the Software Services created pursuant to a Statement of Work.
15.11 “Documentation” means all materials and specifications released by Insite which describe the functionality of the Software Services.
15.12 “Error” means a functional or technical defect in the Software Services that causes all or part of the Software Services to fail to perform in substantial conformance with the Documentation for such Software Services.
15.13 “Error Correction” means a modification that, when made or added to the Software Services, corrects an Error or establishes material conformity of the Software Services with the Documentation.
15.14 “Fees” means all fees payable by Customer to Insite pursuant to this Agreement and the Order Form including but not limited to the Subscription Fee and the Ancillary Fees.
15.15 “Force Majeure Event” means any circumstances beyond Insite’s reasonable control including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, Internet anomalies, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
15.16 “Insite Materials” means the Software Services, Documentation and Insite systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Insite or any Subcontractor in connection with the Software Services or otherwise comprise or relate to the Software Services or Insite systems. For the avoidance of doubt, Insite Materials include Usage Data and any information, data or other content derived from Insite’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
15.17 “New Release” means a modification or update of the Software Services that Insite makes generally available to its customers.
15.18 “Service Credits” means units of prepaid services as defined and agreed to in an Order Form pursuant to this Agreement and on the terms stated in an Order Form.
15.19 “Software Services” means the Insite software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Insite provides access to and use of as part of the Services. Software Services shall include any Customizations upon full payment therefore as set forth in the applicable Statement of Work and pursuant to this Agreement.
15.20 “Subscription Fee” means the fee for the Software Services as set forth on an Order Form.
15.21 “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Software Services that are not proprietary to Insite.
15.22 “Usage Data” has the meaning set forth in Section 8.3.
Service Level Agreement
1. Software as a Service Service Levels
1.2 “Service Level Failure” means a material failure of the Services to meet the Availability Requirement.
1.3 “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet, and operate in material accordance with the Specifications.
1.4 “Available Hours” shall mean the number of hours the Services are Available in a given calendar month, excluding time that qualifies as an Exception.
1.5 “Base Hours” shall mean the total number of hours in a given calendar month, excluding time that qualifies as an Exception.
1.6 For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) issues resulting from actions or inactions by Customer or Customer’s Certified Services Provider including issues resulting from Customer Data, Customer Integrations, Customer Systems, or other issues beyond the Software Services provided by Insite; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Insite pursuant to this Agreement; (f) Scheduled Downtime; (g) disabling, suspension or termination of the Services pursuant to Section 1.4 of the SSA; (h) denial of service attacks, mail flooding, or sabotage, viruses, worms, other attacks directed toward Insite’s network of servers provided that such attacks were not caused by Insite’s failure to use commercially reasonable precautions against such attacks; (i) Insite’s performance of emergency maintenance, such as installing security patches or to remedy conditions likely to cause severe degradation to the Services, as designated by Insite in its sole discretion. Insite may not be able to provide Customer advance notice of such emergency maintenance. Downtime will be measured in minutes and commence when Insite confirms a Service Level Failure, and Downtime concludes once Insite deems the Software Services to be available.
1.7 Service Level Failures and Remedies. In the event of a Service Level Failure, Insite shall issue a credit to Customer in an amount as set forth in the table below:
|Availability Percentage = Available Hours / Base Hours||Subscription Credit|
|Equal to 99.9% and above||No credit due|
|99.5% up to 99.9%||10.0% of 1/12th of Client’s current annual Subscription Fee|
|Below 99.5%||25.0% of 1/12th of Client’s current annual Subscription Fee|
(each a “Subscription Credit”), subject to the following:
1.7.1 Insite has no obligation to issue any Subscription Credit unless Customer requests such Subscription Credit in writing within fifteen (15) days of the end of the month in which the Service Level Failure occurred; and
1.7.2 In no event will a Subscription Credit for any Service Period exceed twenty-five (25%) percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
1.7.3 Any Subscription Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section sets forth Insite’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
1.8 Scheduled Downtime. Insite will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services outside of Business Hours; and (b) give Customer at least forty-eight (48) hours prior notice of all scheduled outages of the Hosted Services (”Scheduled Downtime”). Insite also commits to limiting any Scheduled Downtime for routine maintenance of the Hosted Services to a maximum of twenty-four (24) hours in any given calendar month.
1.9 Support. The Services include Insite’s standard customer support services (”Support Services”) as set forth in Section 2 below. Insite will provide Error Corrections, and may provide, in its sole discretion, New Releases. New Releases do not include products and services that provide new functionality or features (“New Functionality”) unless Insite elects to release such New Functionality as a New Release. If released and installed, Error Corrections and New Releases shall be deemed part of the Service Software and subject to the terms and conditions of this Agreement.
2. Software as a Service Support Services
2.1 Support Services
2.1.1 So long as Customer is in compliance with the terms and conditions of the Order Form and SSA (including Customer’s obligation to make payments when due), Insite shall provide Support Services.
2.1.2 During the Term of an active Order Form, Insite shall provide to Customer: (i) Error Corrections for each known Error that Insite is able to repeat in its own environment and that is not caused by Customer’s systems, data or software (including third-party software licensed to Customer) or to the extent the Error arises out of any customizations or extensions of the Software, and (ii) New Releases for the Software when and if Insite elects to make such New Releases generally available to its Customers.
2.1.3 Customer shall maintain its own support team to identify, diagnose, and troubleshoot operational and technical issues with Insite’s Support Services personnel.
2.1.4 Insite shall provide Customer access to support desk personnel by phone, portal, and email between the hours of 7 a.m. and 6 p.m. Central Time Monday through Friday (“Business Hours”). Outside of Business Hours, Customer will have access to support portal and email.
2.1.5 Upon receipt of notification from Customer of an apparent Error within or related to the Software, Insite will use reasonable efforts to promptly investigate the issue and demonstrate to Customer that the Error does not exist or if confirmed as an Error, use reasonable efforts to identify an immediate work-around and provide Customer with an Error Correction as soon as practical.
2.1.6 Insite shall use reasonable efforts to respond to a request for troubleshooting assistance within the applicable response time and with the appropriate personnel. In the event Error diagnosis or resolution exceeds the applicable resolution time, Insite shall escalate as reasonably necessary to resolve the Error.
2.2 Support Service Priorities
2.2.1 The problem escalation and resolution guidelines set forth in this Exhibit will apply in all cases as determined by Insite in its reasonable discretion.
2.2.2 Prioritization of Tickets:
Priority 1: issues that stop the flow of business on Customer’s system.
Priority 2: issues that seriously impact the flow of the Customer’s business but do not completely interrupt it.
Priority 3: issues with the system but a workaround or alternate path through the business process is available.
Priority 4: issues that are product operational questions, user education issues or cases where some small function of the system needs attention.
2.2.3 Processing of Tickets (Response and Resolution Times):
Priority 1: target of 30-60 minutes response during Business Hours, 2-4 hours response after Business Hours. Resolution targeted within 2-4 hours.
Priority 2: target of 1-2 hours response during Business Hours, 4-8 hours response after Business Hours. Resolution targeted by end of next business day.
Priority 3: target of 4-8 hours response during Business Hours, 8-24 hours after Business Hours. Resolution targeted within the next 5-10 business days.
Priority 4: target of response within one to five business days. Target resolution in future release unless otherwise agreed upon by the parties.
2.3 Problem Resolution
2.3.1 Insite will use commercially reasonable efforts to resolve Errors with the target resolution times.
2.3.2 Insite may from time to time update its support procedures, provided that Insite shall not change the support policy such that it materially reduces the current level of support services provided to Customer.
2.3.3 Customer’s sole and exclusive remedy arising from any Error shall be Insite’s best efforts to develop and install an appropriate Error Correction.