Capitalized terms used in this Agreement are defined in this Section 1 or the Section in which they are first used:
1.1. “Annual Term” means each successive twelve (12) month period during which a Subscription Plan remains effective. The initial Annual Term for the first Subscription Plan begins on the Subscription Effective Date of this Agreement unless otherwise stated in the applicable Subscription Plan.
1.2. “Deliverables” means all deliverables created or provided by Innovent to Customer under this Agreement, including without limitation any Error Corrections, Workarounds, software updates and/or Documentation.
1.3. “Documentation” means, with respect to a particular Supported Software, the standard end-user technical documentation and specifications that are supplied with such Supported Software.
1.4. “Error” means a reproducible failure of Supported Software to perform in substantial conformity with its Documentation, if any.
1.5. “Error Correction” means a bug fix or maintenance correction that Innovent provides to Customer for the Supported Software in accordance with Section 4.
1.6. “Incident” means a single question or issue posed by Customer with respect to the Supported Software; the number of Incidents purchased is specified in a Subscription Plan.
1.7. “Innovent Products” means the Innovent proprietary software application(s) and API(s) identified in the applicable Order Form.
1.8. “Product Catalog” means a single Solr collection configuration.
1.9 “Store” means a single set of unique configuration settings (e.g. Product Catalog), users (e.g. authentication and authorization) or rules (e.g. business rules that affect the search results returned from a Product Catalog.
1.10. “Services has the meaning set forth in Section 2.
1.11. “Subscription Plan” means a plan setting forth the Innovent Products and Services to be provided by Innovent. The first Subscription Plan under this Agreement is set forth as Exhibit A to the Order Form and subsequent Subscription Plans will be incorporated by attaching them to a subsequent Order Form.
1.12. “Support Coordinators” has the meaning set forth in Section 4.2.
1.13. “Supported Software” means the version(s) of the Innovent Products that are specifically identified in a Subscription Plan as “Supported Software”; and includes any subsequent Error Corrections or Workarounds to such software that Innovent provides to Customer.
1.14. “Open Source Software” means any software that is licensed under any open source, freeware, shareware, or similar licensing or distribution models.
1.15. “Workaround” means a set of procedures to mitigate an Error and allow the Supported Software to substantially achieve the functionality set forth in the Documentation, if any.
1.16. “Deployment Period” means the period that is ninety (90) days after the Effective Date as identified in the applicable Order Form.
1.17. “Go Live Date” means the date that Customer begins using Innovent Products in a production environment.
1.18. “Subscription Effective Date” is the first working day following the Go Live Date or the expiration of the Deployment Period, whichever comes first.
1.19. “Integration Services” means the integration, implementation, configuration and/or other professional services as described on Exhibit C.
1.20. “Integration Services Fee” means the fees set forth on Exhibit C that are paid by Customer to Innovent for the Integration Services.
1.21. “API Materials” means the documentation and/or sample code for the Innovent Products provided by Innovent to Customer hereunder that enables interoperability between the Innovent Products and Customer’s Project.
Customer may purchase support and maintenance services by entering into a Subscription Plan with Innovent. The specific services purchased by Customer will be deemed the “Services”.
If specified in the Subscription Plan, Innovent will provide maintenance services for the Supported Software. Maintenance services consist of Innovent providing Customer with Error Corrections, bug fixes and updates as are made available to the Supported Software during the period in which Customer has purchased maintenance services under that Subscription Plan. Innovent does not promise or warrant that any minimum number of Error Corrections, bug fixes or updates will be made available during a particular time period. Maintenance services do not include provision of Error Corrections of software products provided by third parties, other than those expressly specified in the Subscription Plan.
4.1. Support Services. If specified in the Subscription Plan, Innovent will provide support services to Customer for the specific supported platforms designated in the Subscription Plan. Support services consist of: (a) answering questions regarding the installation and operation of the Supported Software; (b) attempting to identify causes of suspected Errors occurring on the Supported Software; (c) addressing confirmed Errors in the Supported Software in accordance with Section 4.3; and (d) any additional support services that may be specified in the applicable Subscription Plan. Unless otherwise mutually agreed in writing, Innovent will have no obligation to provide on-site support services at Customer’s location.
4.2. Support Coordinators. Each Subscription Plan will designate specific Customer personnel (the “Support Coordinators”) for requesting and receiving support services from Innovent, and Innovent will provide support services only to those designated Support Coordinators. Customer may re-designate Support Coordinators up to three (3) times during any Annual Term.
4.3. Service Levels and Procedures. When Support Coordinators notify Innovent of a suspected Error in the Supported Software, Innovent will use commercially reasonable efforts to reproduce such suspected Error. If Innovent identifies an Error, it will use commercially reasonable efforts to correct the Error in accordance with the service level commitments and procedures, if any, set forth in the Subscription Plan. If Innovent cannot meet the service levels specified in a Subscription Plan (or, in the absence of any specified service levels, correct the Error within a reasonable time), Customer may as its exclusive remedy terminate the applicable Subscription Plan by giving thirty (30) days written notice to Innovent, whereupon Innovent will promptly refund to Customer that portion of the fees paid under that Subscription Plan for the then-current Annual Term that is attributable to the Supported Software on which the uncorrected Error resides. THIS SECTION 4.3 SETS FORTH INNOVENT’S ENTIRE LIABILITY TO CUSTOMER AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY ERROR.
4.4. Exclusions. Innovent will have no obligation to correct Errors caused by: (a) improper installation of the Supported Software; (b) any release, error correction or modification of the Supported Software not made by Innovent unless it is pre-approved in writing by Innovent; (c) any version of the Supported Software that is more than eighteen (18) months old; or (d) any version of the Supported Software running on any platform that is not supported by Innovent. No support services will be provided for the Supported Software if Customer ceases payment hereunder.
4.5. Maintenance Services. If specified in the Subscription Plan, Innovent will provide maintenance services for the Supported Software. Maintenance services consist of Innovent providing Customer with Error Corrections, bug fixes and updates as are made available to the Supported Software during the period in which Customer has purchased maintenance services under that Subscription Plan. Innovent does not promise or warrant that any minimum number of Error Corrections, bug fixes or updates will be made available during a particular time period. Maintenance services do not include provision of Error Corrections of software products provided by third parties, other than those expressly specified in the Subscription Plan.
4.6. Additional Charge Services. Should Customer request that Innovent provide services in connection with problems (a) caused by the factors listed in Section 4.4, or (b) that are otherwise beyond the scope of this Agreement (including, for example, providing assistance or other services in connection with a non-conformity that does not constitute an Error), Customer will pay for such services that Innovent agrees to perform on a time-and-materials basis at Innovent’s then-current rates.
4.7. Customer Obligations. As a condition to Innovent’s support and/or maintenance obligations under this Agreement, Customer must: (a) assist Innovent in identifying and correcting Errors; (b) execute reasonable diagnostic routines in accordance with instructions provided by Innovent (and inform Innovent of the results of such tests); (c) ensure that its designated Support Coordinators are sufficiently qualified and familiar with the Supported Software and Customer systems so as to provide Innovent with reasonable assistance in diagnosing and addressing Errors.
Customer will pay at the outset of each Annual Term or renewal Annual Term, the annual fees specified in each Subscription Plan. Customer will be responsible for all taxes resulting from the Subscription Plans other than taxes on Innovent’s net income. Innovent may change the annual fees specified in a Subscription Plan, on a going-forward basis and will provide Customer notification of such change. Innovent shall invoice Customer for expenses incurred as a result of performing services in accordance with the Subscription Plan. The fees, charges and/or expenses invoiced in accordance with this Section 5 shall be payable by Customer within thirty (30) days of the invoice date of each invoice. Customer will reimburse Innovent for any collection fees or costs attributed to Customer’s non-payment or late payment of monies due under a Subscription Plan, including, without limitation, reasonable attorneys’ fees.
6.1. Agreement Term and Subscription Plans. The term of this Agreement will commence on the Effective Date and continue until terminated under this Section 6. Unless otherwise specified therein, a Subscription Plan is effective as of the Subscription Effective Date, and will remain in effect for the duration of its then-current Annual Term. Each Subscription Plan will automatically renew for additional Annual Terms, unless either party notifies the other of its intent not to renew such Subscription Plan at least thirty (30) days before the expiration of the then-current term. Innovent will have no obligation to provide services under a particular Subscription Plan once it has expired or is terminated.
6.2. Termination. Either party may terminate this Agreement at any time (upon five (5) days written notice to the other party) if no Subscription Plans are then in effect. If either party breaches this Agreement and does not cure the breach within thirty (30) days of the other party’s written notice specifying the breach, the other party may, at its election, terminate for cause (a) this Agreement, including all Subscription Plans, or (b) only the specific Subscription Plan giving rise to the breach. Either party may terminate this Agreement (including all Subscription Plans) at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state or the United States.
6.3. Effect of Termination. Upon termination of this Agreement: (a) each party will return to the other party the Confidential Information of the other party; (b) all Subscription Plans will terminate; (c) Innovent will have no further obligation to provide services or Deliverables to Customer; and (d) Customer will immediately pay to Innovent any fees or expenses incurred prior to the effective date of termination. Sections 1 and 8 through 11 will survive expiration or termination of this Agreement or any Subscription Plan hereunder.
7.1. Open Source Licenses. The parties agree that, as between the parties, Innovent owns all of the Deliverables and Innovent Products, other than third party Open Source Software. All Open Source Software is distributed to Customer under the terms of the open source license agreements referenced in the applicable distribution. Innovent may, in its sole discretion, make some or all of the Innovent Products and/or Deliverables available to the open source community.
7.2. Innovent Development License. Innovent grants to Customer a nonexclusive, nontransferable, limited license to use the Innovent Products only for the purpose of prototyping, developing, and testing the Project as identified in the Order Form, and not for any other purpose.
7.3. Innovent Production License. Only if specified in the Order Form, Innovent grants to Customer a nonexclusive production license, for the Annual Term and any renewal thereof, to reproduce, distribute internally, and use the executable portions of the Innovent Products as embedded within the Project for Customer’s internal business purposes. The Open Source Software portions of the Innovent Products are distributed to Customer under the terms of the open source license agreements referenced in the applicable distribution.
7.4. License to API Materials. Subject to the terms of this Agreement, Innovent hereby grants to Customer a non-exclusive, non-transferrable, limited license during the Agreement term to use and reproduce the API Materials solely for Customer’s internal use and solely for the purpose of enabling interoperability between the Customer Project and the Innovent Products.
7.5. Other Deliverables. For all other Deliverables (that are not Open Source Software or Innovent Products), for example consulting or advisory reports, Innovent hereby grants to Customer a non-exclusive, perpetual license to use, reproduce, modify, display and perform such Deliverables for Customer’s internal business purposes within Customer’s organization.
7.6. Restrictions. All licenses granted are subject to the conditions that Customer will not: (a) modify, adapt, alter, translate, or create derivative works from the Innovent Products; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Innovent Products; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Innovent Products to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Innovent or its suppliers contained on or within any copies of the Innovent Products; (e) merge or use the Innovent Products with any software or hardware for which they were not intended (as described in the Documentation); (f) use the Innovent Products in any time-sharing, outsourcing, service bureau, hosting, application service provider environments; (g) use the Innovent Products for the purpose of third party training; (h) disclose the results of any benchmark tests on the Innovent Products without Innovent’s prior written consent; or (i) use the Innovent Products other than as described in the Documentation, or for any unlawful purpose. Innovent may audit and monitor Customer’s use of the Innovent Products.
7.7. Ownership. The API Materials and Innovent Products are licensed to Customer for use during the Term of this Agreement, not sold. There are no implied rights. All right, title and interest in and to the API Materials and Innovent Products, and any copies Customer is permitted to make, are owned by Innovent or its suppliers, and is protected by United States copyright laws and international treaty provisions.
7.8. Customer Suggestions or Recommendations. Customer hereby grants Innovent a royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, worldwide, sub-licensable license to use, copy, modify or distribute, including by incorporation into the Innovent Products, API Materials, Deliverables and/or Documentation, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Innovent Products, API Materials, Deliverables and/or Documentation.
“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, strategies, business forecasts, price lists, this Agreement, and information regarding personnel, customers and suppliers. Without limiting the foregoing, The Deliverables will be deemed to be Innovent’s Confidential Information, whether or not so marked. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party. If there is any conflict between this Section 8 and any separate non-disclosure agreement signed by authorized representatives of both parties, the separate non-disclosure agreement shall control.
9.1. Warranty. Innovent represents and warrants, for a period of ninety (90) days after delivery, that the Services will be performed in a good and workmanlike manner and the Deliverables (excluding Open Source Software) will substantially conform to the description in the Order Form. In the event of a breach of this warranty, Innovent will re-perform the applicable Services within a reasonable time provided that Customer notifies Innovent within thirty (30) days (for Services in general) following the date of completion of the Services. The foregoing will be Customer’s sole and exclusive remedy, and Innovent’s sole and exclusive obligation, for a breach of the warranty under this Agreement.
9.2. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 9.1, INNOVENT DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE INNOVENT PRODUCTS, SERVICES AND DELIVERABLES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. THE INNOVENT PRODUCTS, SERVICES AND DELIVERABLES ARE NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
EXCEPT FOR A BREACH OF SECTION 7.6 (RESTRICTIONS) or 8 (CONFIDENTIAL INFORMATION): (A) NEITHER PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO (I) LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE DELIVERABLES OR SERVICES; AND (B) REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, INNOVENT’S TOTAL CUMULATIVE LIABILITY FOR ACTUAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR SERVICES GIVING RISE TO SUCH LIABILITY DURING THE THEN-CURRENT TERM IN WHICH SUCH WERE PROVIDED. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
11.1. Neither party shall be liable for delay in performance hereunder due to causes beyond its control, including but not limited to acts of God, fires, strikes, acts of war, or intervention by governmental authority. Either party may assign this Agreement in its entirety to (i) any entity under the common control of such party; or (ii) any successor in interest to such party by way of merger or consolidation; or (iii) a purchaser of all or substantially all of the assets of such party, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. Each party is acting in performance of this Agreement as an independent contractor. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested at the address set forth on the Order Form, or such other address as either party may in the future specify to the other party. This Agreement will be governed by the laws of the State of California in the United States of America. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the courts in Orange County, California. The parties agree that this Agreement is written and construed in the English language. A failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder. This Agreement and the Subscription Plans set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by both parties. Any contractual terms contained in any Customer purchase orders will not be applicable to any transaction between the parties unless contained in a written document signed by both parties and such terms are hereby rejected by Innovent. In the event of a conflict between this Agreement and the Subscription Plan, the terms of such Subscription Plan shall control with respect to the maintenance services provided pursuant to such Subscription Plan. In the event any one or more of the provisions of this Agreement or of any Subscription Plan is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same Agreement.
11.2. Customer understands that the Deliverables may contain encryption technology and other software programs that may require an export license from the U.S. State Department and that export or re-export of the Deliverables to certain entities (such as a foreign government and its subdivisions) and certain countries is prohibited. Customer acknowledges that it will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Deliverables is used and, in particular, Customer will not export or re-export the Deliverables without all required United States and foreign government licenses. Customer will defend, indemnify, and hold harmless Innovent from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors or employees.
11.3. The Deliverables and any other software covered under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Deliverables and any other software and documentation covered under this Agreement with only those rights set forth therein. Customer agrees that Innovent may from time to time identify Customer as an Innovent customer on the Innovent Web site, sales and marketing materials and press releases. Customer grants Innovent a non-transferable, non-exclusive, royalty-free license to use Customer trademarks and logos (to be provided by Customer) on Innovent’s Web site, press releases, advertisements and sales and marketing materials for the term of this Agreement for the limited purpose of indicating that Customer is a customer of Innovent. Any other use of such trademark or logo will require Customer’s prior written permission.
11.4. Customer and Innovent may engage in co-marketing and publicity programs, including advertisements in trade and other publications, upon written approval (not to be unreasonably withheld or delayed). Innovent may also use Customer’s name, trademarks, and logo as a reference, on Innovent’s website, and in marketing materials. Customer agrees to serve as a “reference” for Innovent which means that Customer may be called from time-to-time to serve as a reference to other prospective customers, current or potential investors, the press, and financial and technology analysts, as mutually agreed to by both parties. Customer further agrees to cooperate with Innovent within one (1) year following the effective date of this Agreement to produce and publish a public or non-public (at Customer’s discretion), “case study” of Customer’s usage of Innovent’s Products.