This License and Service Agreement (the “Agreement”) is entered into between BA Insight, LLC, a Delaware limited liability company (“BA Insight”) and the Customer identified below or on the Order Form (“Customer”) as of the date last signed below or on the Order Form.
The parties agree as follows:
For purposes of this Agreement, the following terms have the following meanings:
- “Data Item” means an electronically stored document, file, list element, or database record along with its associated metadata.
- “Enhancement” means, collectively, all new versions, patch maintenance releases, error corrections, enhancements, modifications, updates and bug fixes to the Software and modifications to the documentation. Enhancement specifically excludes any new BA Insight releases or upgrades that contain new features and that BA Insight markets separately, such as an upgrade required for a new version of Microsoft SharePoint.
- “Maintenance Services” means the annual maintenance and support services described in Section 9.
- “Order Form” means a sales quotation or order form signed by BA Insight and Customer, which identifies the quantities, licensing terms and charges for the Software and Services to be provided to Customer. BA Insight may elect to accept an alternative document from Customer as an Order Form.
- “Server” means the type of server specified in the Order Form with the specified number of central processing units (“CPUs”) that enables other CPUs electronically-linked to the Server to access data and software from the Server.
- Services” means professional support services ordered by Customer from BA Insight as described in Section 10.
- “Software” means (i) the BA Insight software specified on the Order Form in object code format only as provided with this Agreement; (ii) for perpetual licenses, any Enhancement(s) provided by BA Insight as part of the Maintenance Services; (iii) for subscription licenses, Enhancement(s) are provided as part of the subscription license; and (iv) any documentation provided for the Software.
- “Source Data Item Count “means the cumulative number of all Data Items explicitly loaded or drawn by a Customer from a specified source system into a search index or other target system.
- “Statement of Work” means a statement of work signed by BA Insight and Customer, which captures and defines the work activities, deliverables, fees and timeline for specified work by BA Insight for the Customer.
- “Subscription Period” means the period during which Customer is paying the subscription fees specified on the Order Form.
- “WFE” means web front-end as specified in the Order Form, with the specified number of web front ends (“WFEs”). WFE servers handle web page requests from users, process the request and return the data.
- SCOPE OF AUTHORIZED USE
2.1 License Grant. Subject to the terms and conditions of this Agreement and in consideration of Customer’s payment of the license fees or subscription fees identified on the Order Form, BA Insight hereby grants to Customer only a non-transferable, non-exclusive, license solely (i) to install and use the Software only on (a) the number of Server(s) with the number of CPU’s, (b) for the number of employees or the number of WFEs or (c) the number of Source Data Item count specified on the Order Form, or (d) the SharePoint version or (e) environment specified on the Order Form, (ii) to use the Software in accordance with any license restrictions outlined on the Order Form and (iii) for subscription licenses, only during the Subscription Period.
2.2 Archival Copy. Customer shall not copy the Software, except for one backup or archival copy or as necessary for installation on the Server(s). Customer shall not rent, lease, sublicense, transfer, provide, disclose or otherwise make the Software available to any third party. Customer shall not modify, decompile, disassemble or otherwise reverse engineer the Software, except where (i) rights to do so are required by law and (ii) BA Insight has refused to satisfy any conditions to such rights. Customer shall not remove or modify any copyright, trademark or other marking or any notice of BA Insight’s proprietary rights. Customer shall allow BA Insight, upon reasonable notice, reasonable access to its premises to audit Customer’s compliance with this Agreement.
- TITLE AND OWNERSHIP
- Ownership of Software. Title to and ownership of the Software (including any enhancements, improvements or modifications, and all related know-how thereto, whether or not created or conceived of during the course of providing Services) and other BA Insight work product, and all patents, copyrights, and trade secret rights in those items are retained by BA Insight and are not transferred to Customer. Customer shall take reasonable action to require its personnel to protect the confidentiality and prevent unauthorized access, copying or use of the Software. BA Insight reserves all rights to the Software not granted to Customer. No rights or licenses with respect to the Software are granted other than those rights expressly and unambiguously granted in this Agreement.
- ORDERS, PAYMENT AND SHIPMENT
Customer’s execution or submittal of an Order Form is a legally binding commitment to purchase and pay for the Software licenses and Services on the terms of the Order Form and this Agreement. Customer shall pay BA Insight the fees specified on the Order Form per the terms agreed to on the Order Form, together with any applicable shipping charges, duties and taxes (excluding taxes based on BA Insight’s net income). Services fees and travel expenses are invoiced and due as the Services are delivered. If Customer fails to pay any overdue fees within 30 days’ after invoice, BA Insight may terminate or suspend the applicable licenses granted or Services provided. Shipment is F.O.B. origin. All fees payable under this Agreement are payable in U.S. Dollars unless otherwise specified on the Order Form.
- LIMITED WARRANTY
BA Insight warrants that all unmodified Software will substantially conform to BA Insight’s then-current published specifications (as set forth in the user documentation or on its website) for a period of twelve (12) months from shipment of the initial provided release or for subscription licenses, during the Subscription Period. BA Insight’s entire liability and Customer’s exclusive remedy under this warranty shall be for BA Insight to make reasonable efforts to remedy any such material non-conformance reported in writing within the warranty period. If BA Insight is unable to remedy the failure after reasonable efforts, BA Insight shall refund the license fees paid for the Software and terminate this Agreement and Customer will return or destroy the Software and, if requested by BA Insight, certify so in writing. For subscription licenses, the refund shall be limited to the fees paid during the Subscription Period or the last 6 months whichever is less.
All information submitted by one party to the other party in connection with the Software or Services provided under this Agreement or expressly identified in writing as confidential, including data, the Software, customer information, product and marketing information, product plans, designs, beta software and documentation, shall be used solely to perform the activities contemplated under this Agreement and safeguarded as confidential by the recipient to the same extent recipient safeguards its own confidential information of like importance and in any event with not less than a reasonable degree of care. These obligations do not apply to information that is (i) publicly available, (ii) in its possession prior to its receipt from the other party, (iii) obtained by it from third parties without restriction on disclosure, or (iv) independently developed without reference to the confidential information disclosed. Customer acknowledges that the Software is a commercially valuable proprietary product of BA Insight, the design and development of which has involved the expenditure of substantial amounts of money and the use of skilled programmers resulting in certain inventions, other proprietary secrets, or confidential information which afford BA Insight a commercial advantage over its competitors.
- LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT PROHIBITED BY LAW, BA INSIGHT DISCLAIMS ALL WARRANTIES (OTHER THAN AS EXPRESSLY STATED IN SECTION 5), EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND SERVICES, INCLUDING, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN NO EVENT IS BA INSIGHT LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, OR THE SERVICES. EXCEPT AS PROVIDED IN SECTION 8, THE ENTIRE LIABILITY OF BA INSIGHT FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT ARE LIMITED TO ACTUAL DIRECT DAMAGES OF CUSTOMER. THE MAXIMUM AGGREGATE LIABILITY OF BA INSIGHT UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES RECEIVED BY BA INSIGHT FOR THE SOFTWARE OR SERVICES THAT CAUSED THE DAMAGES.
- INFRINGEMENT INDEMNITY
BA Insight shall defend any suit or proceeding brought against Customer which alleges that the Software infringes any U.S. patent or copyright, provided Customer (i) promptly notifies BA Insight of the claim, (ii) gives BA Insight the full authority to control the defense of the claims and (iii) cooperates in defending the claim. BA Insight shall pay all resulting damages and costs finally awarded against Customer attributable to a finding of any such infringement but shall not be responsible for any settlement made without BA Insight’s consent. If Customer’s use is enjoined based on infringement by the Software, BA Insight shall, at its option and expense, (i) replace or modify the Software to avoid such infringement; or (ii) obtain for Customer the right to continue using the Software. If the Software is adjudged to be infringing and none of the foregoing is practicable and commercially reasonable to avoid the infringement claim in the reasonable judgment of BA Insight, it may refund the license fees paid for such infringing Software and terminate this Agreement as to such Software. BA Insight and any of its licensors disclaim all other liability for infringement claims. BA Insight shall have no liability for any infringement claims based on (i) combination of the Software with products or software not supplied by BA Insight, without which such infringement would not have occurred, (ii) modification or alteration of the Software by BA Insight in accordance with Customer’s instructions or by parties other than BA Insight, without which such infringement would not have occurred, or (iii) actions by Customer or its agents in violation of this Agreement.
- MAINTENANCE AND SUPPORT SERVICES
9.1 Period. For subscription licenses, BA Insight will provide Maintenance Services as described in this section 9 for the duration of the Subscription Period. The Maintenance Services for subscription licenses are included with the subscription fee
For perpetual licenses, BA Insight will provide contracted Maintenance Services as described in this Section 9 for a maintenance and support period of twelve (12) months, if a shorter period is not stated on the Order Form (the “Maintenance Period”), starting on the date Customer’s signs the Order Form, for the fees stated on the Order Form
9.2 Coverage. During the Subscription or Maintenance Period BA Insight will (i) provide Enhancements to the Software that are generally made available to BA Insight’s subscription or maintenance and support customers and (ii) provide help desk support during BA Insight’s customer support department business hours (8 a.m. to 6 p.m. ET in the United States and 8 a.m. to 6 p.m. GMT in Europe, Monday through Friday excluding BA Insight holidays) to address issues concerning use and performance of the Software. During the Subscription or Maintenance Period, BA Insight will use reasonable efforts to correct significant programming errors and to repair or replace Software not performing substantially in accordance with the applicable user documentation of the current unaltered release of the Software in the form of Enhancements, as selected by BA Insight, provided notice of such is received by BA Insight. Enhancements are governed by this Agreement. BA Insight is not obligated to investigate or correct defects found by BA Insight to be (i) in other than a current, unaltered Software release, or the release immediately preceding the most current release; (ii) caused by Customer’s negligence or modification of the Software or its use in combination with software not provided by BA Insight; (iii) caused by improper or unauthorized use of the Software; or (iv) due to external causes including hardware problems, power failure or electric power surges.
9.3 Customer Obligations. To facilitate the receipt of Maintenance Services and as a condition to receiving them, Customer shall (i) appoint and identify a suitably experienced and knowledgeable technical contact and alternate as BA Insight’s sole contact point for Software maintenance and support issues, who is knowledgeable and competent in the use of the Software; (ii) update and maintain its installation of the Software to the then-current release level provided by BA Insight, and install Enhancements provided by BA Insight, within sixty (60) days of receipt; (iii) promptly notify BA Insight’s customer support department of software bugs or other problems requiring maintenance service; (iv) subject to Customer’s reasonable security requirements, provide BA Insight reasonable access and information regarding its systems utilizing the Software, including a connection to Customer’s Servers as requested by BA Insight; and (v) destroy or return prior Software releases upon installation of a more current release, except for permitted archival copies.
9.4 Payment. BA Insight will invoice the Subscription Renewal or Maintenance renewal according to the terms noted on the Order Form, unless a notice of discontinuance per section 9.5 has been received. For renewals customer shall pay the invoice before the subscription or maintenance renewal term and within thirty (30) days of the invoice date unless an alternative date is specified in the Order Form. Undisputed and invoiced amounts that remain unpaid as of the due date bear interest on the unpaid balance at the rate of eighteen percent (18%) per year.
9.5 Notice of Discontinuance of Subscription License or Maintenance Program Services. Customer shall notify BA Insight that it intends to discontinue a Subscription license or Maintenance Services no less than sixty (60) days prior to the commencement of any Subscription Period or Maintenance Period renewal. If a Customer exercises its right to discontinue a subscription license, upon expiry of the then subscription term, Customer cannot use the Software. Prepaid Maintenance Services fees are nonrefundable.
9.6 Unsupported Software Use. BA Insight will not provide technical support for products where unauthorized modifications such as database changes, custom scripting, or any other alterations to core code have been made by anyone other than a current BA Insight employee. Customer acknowledges that any such changes are made at Customer’s own risk, and that BA Insight does not and cannot assume any liability for problems arising from said changes. If Customer has a business need for a change to standard software and/or database schemes, Customer shall contact BA Insight customer support.
- PROFESSIONAL SERVICES
10.1 Professional Services. BA Insight shall provide Services relating to the Software, such as training, implementation, consulting, mentoring, programming, testing, and deployment services to the extent specified in an Order Form or agreed Statement of Work.
10.2 Customer Responsibilities. As a condition to BA Insight’s performance of Services, Customer shall perform certain tasks specified by BA Insight as Customer responsibilities. Customer shall reasonably cooperate with BA Insight in performing such Services, including providing BA Insight with safe and timely access to Customer’s computer systems, personnel, facilities, utilities, and information reasonably necessary to the performance of such services. Customer is responsible for the completeness, accuracy and legal availability of the information and data it supplies to BA Insight under this Agreement.
10.3 License. Customer shall have a non-exclusive license, as defined on the order form, to use and copy any computer software or documentation created or developed by BA Insight in performing Services to the same extent as, and in conjunction with using, the Software in accordance with this Agreement.
10.4 Rights. BA Insight retains title and ownership of all intellectual property rights in any work product and has the right to perform and provide the same or similar services and resulting work product to any third party, excluding Customer content or confidential information provided to BA Insight.
11.1 Termination. BA Insight may terminate or suspend this Agreement, the licenses granted or the Services provided under this Agreement immediately upon notice if Customer fails to cure, within thirty (30) days of notice, any breach of this Agreement, including Customer’s failure to pay fees when due.
11.2 Effect of Termination. Upon termination of any license granted under this Agreement, Customer shall immediately terminate use of the Software for which the license has been terminated and return or destroy all copies of such Software and other proprietary materials of BA Insight and certify in writing as to such destruction or return. Sections 3, 6, 7, 8, 11 and 12 shall survive termination of this Agreement.
12.1 Assignment. Except for assignment in the case of a merger, or the sale of all or substantially all of the assets or stock of that party which shall be subject to the limits provided in Section 2.1, neither party may assign this Agreement without the prior written consent of the other party.
12.2 Governing Law. This Agreement is governed by Massachusetts law without regard to its choice of law principles. Both parties will operate in good faith to resolve disputes. The exclusive jurisdiction and venue for actions arising out of or related to this Agreement shall be the Commonwealth of Massachusetts and U.S. federal courts serving districts situated in the Commonwealth of Massachusetts. Each party waives its rights to a jury trial. No action arising under this Agreement may be brought by either party more than two years after the cause of action arises. The United Nations Convention on International Sale of Goods does not apply to this Agreement. The parties recognize that money damages may not be an adequate remedy for a breach or threatened breach of the obligations under this Agreement, and the parties agree that, in addition to any other remedies available at law, the aggrieved party shall be entitled to an injunction or other appropriate equitable relief against any such continued breach of such obligations. Customer shall pay BA Insight’s reasonable costs of collection of any unpaid fees when due, including reasonable attorney’s fees. No action arising under this Agreement, in contract, tort or otherwise, may be brought by either party more than two years after the cause of action arises.
12.3 Export. Customer shall comply with the export laws of the United States and other applicable governments and shall not export the Software from the country of installation except in compliance with such laws.
12.4 Government. For acquisitions by or for the US Government or pursuant to a US Government contract or associated subcontract, the government agrees the Software is commercial computer software pursuant to applicable federal acquisition regulation(s), and the terms and conditions of this Agreement shall apply and supersede any conflicting terms and conditions. For acquisitions governed by DFARS Subpart 227.4 (Oct. 1988) the following applies: Restricted rights: Use, duplication, or disclosure by the Government is subject to restrictions set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013(c)(1)(ii) (Oct 1988).
12.5 Force Majeure. BA Insight shall not be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its control, including acts of God, acts of Customer, fire, staff unavailability due to illness, or labor disturbances.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
12.7 Software Performance. The performance of the Software depends on Customer’s configuration of the Software and the type of content being deployed. Use of the Software may require, and BA Insight does not provide, Microsoft SharePoint. Customer shall, at its expense, obtain the appropriate software license to use any required software.
12.8 Open Source. The Software may contain or be accompanied by certain third party or open source software products (“Other Products”). Other Products, if any, are identified in, and subject to, special license notices, terms or conditions set forth in a text file, installation file or similar file or folder accompanying the Software. If Other Products are provided by BA Insight, they shall be used only as integrated or in combination with the Software. The limits of liability of Section 7 apply equally to any Other Products.
12.9 Counterparts. This Agreement may be executed in two or more counterparts, via electronic or pdf signature, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory is bound until all the parties named below have duly executed or caused to be duly executed a counterpart of this Agreement
12.10 Entire Agreement. This Agreement (together with any Order Forms executed by the parties) constitutes the entire agreement between them with respect to this Agreement’s subject matter, and may be modified only by written agreement of both parties. Different or additional terms contained in purchase orders or other documents supplied by Customer shall not apply, except to supply quantities and pricing, if accepted by BA Insight.
12.11 Notices. Any notice or demand required under this Agreement shall be deemed to have been sufficiently given and received when delivered in person or by facsimile transmission, three business days after being sent by registered or certified mail, return receipt requested, postage paid, or one business day after being sent via a nationally recognized overnight delivery service or via acknowledged email, in each case to the intended recipient at the address or facsimile number provided on the Order Form.
12.12 Rule of Law. Any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to this Agreement. The phrase “without limitation” shall be implied to follow the words “include,” “includes” and “including”. “Or” is not exclusive. Unless the context requires otherwise, references to Sections shall be construed to refer to Sections of this Agreement.