InfraSight SaaS Agreement
This InfraSight SaaS Agreement (the “SaaS Agreement”) is entered into by and between InfraSight Software Corporation (“InfraSight”) and the organization or individual (“Customer”) that has purchased licenses to access and use any software-as-a-service product provided by InfraSight (“Licensed Software”), whether such purchase was directly from InfraSight or from an authorized reseller of InfraSight.
This SaaS Agreement is effective on the earliest of: (a) the date on which Customer executes a purchase order or order form referencing this SaaS Agreement (each, a “Customer Order Form”); (b) the date on which Customer accepts this SaaS Agreement by clicking to accept or agree within the Licensed Software; or (c) the date on which Customer uses the Licensed Software.
1. Scope of License; Restrictions.
1.1 Access; Right to Use.
Subject to the terms of this SaaS Agreement and the terms of the applicable Customer Order Form, InfraSight grants to Customer a non-exclusive, revocable, non-sublicensable, non-transferable right to access and use the Licensed Software for internal business purposes, during the term indicated on the applicable Customer Order Form by those individuals authorized to access and use such Licensed Software on Customer’s behalf (each, an “End User”).
Subject to the terms of this SaaS Agreement and the terms of the applicable Customer Order Form, InfraSight grants to Customer a non-exclusive, revocable, non-sublicensable, non-transferable right to use any applicable documentation or other information provided by InfraSight with respect to the applicable Licensed Software (“Documentation”), during the term indicated on the applicable Customer Order Form by End Users.
1.3 End Users.
Customer is responsible and liable for all uses of the Licensed Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this SaaS Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its End Users, and any act or omission by an End User that would constitute a breach of this SaaS Agreement if taken by Customer will be deemed a breach of this SaaS Agreement by Customer. Customer shall use reasonable efforts to make all End Users aware of the provisions of this SaaS Agreement, as applicable to such End User’s use of the Licensed Software and shall cause all End Users to comply with such provisions.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Licensed Software, including without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall be responsible for maintaining the security of Customer’s Equipment and for all uses of its Equipment. Notwithstanding the foregoing, Customer may request InfraSight to provide certain professional services in relation to the Licensed Software and/or Equipment used in connection with the Licensed Software. Any such professional services shall be governed by a separate agreement and/or work order and may be subject to additional fees.
1.5 Use Restrictions.
Except as otherwise provided in this SaaS Agreement, Customer shall not itself, or through any third party, and shall cause End Users to not:
(a) decompile, disassemble, reverse engineer or otherwise attempt to discover the source code for the Licensed Software or determine how the Licensed Software is provided;
(b) modify, transform or otherwise prepare a derivative work of the Licensed Software;
(c) sell, distribute, sublicense, rent, lease, assign, pledge or otherwise make the Licensed Software available to or grant any rights in the Licensed Software to any unauthorized third party;
(d) remove or modify any confidentiality or proprietary rights notices contained in or on the Licensed Software or the accompanying documentation for the Licensed Software;
(e) attempt to gain access to areas of the Licensed Software which it has not been granted access to or unauthorized access to related systems or networks or breach any security measure;
(f) use the Licensed Software in a manner that would be reasonably anticipated to interfere with, degrade or disrupt the integrity or performance of InfraSight’s technologies, services, systems or offerings;
(g) disclose any Analyzed Data (as defined in Section 7.3) to a third party without InfraSight’s prior written consent;
(h) develop a competitive product or service using ideas, features, functions, or graphics that are the same as or similar to those contained in the Licensed Software; or
(i) otherwise use the Licensed Software in a manner that is not contemplated by this SaaS Agreement, including in a manner not contemplated by the accompanying Documentation for the Licensed Software or in a manner that violates any applicable laws or third-party rights.
InfraSight may temporarily suspend Customer’s or any End User’s access to any portion or all of the Licensed Software, if: (a) InfraSight reasonably determines that (i) there is a threat or attack on any of the Licensed Software; (ii) Customer’s or any End User’s use of the Licensed Software disrupts or poses a security risk to the Licensed Software or to any other customer of InfraSight; or (iii) Customer, or any End User, is using the Licensed Software for fraudulent or illegal activities; (b) Customer or any End User is in breach of this SaaS Agreement; or (c) any vendor of InfraSight has suspended or terminated InfraSight’s access to or use of any third-party services or products required to enable Customer to access the Licensed Software. InfraSight shall use commercially reasonable efforts to provide written notice of any such suspension to Customer following such suspension. InfraSight shall use commercially reasonable efforts to resume providing access to the Licensed Software as soon as reasonably possible after the event giving rise to the suspension is cured.
1.7 Right to Modify or Discontinue.
InfraSight reserves the right to add or modify any feature, functionality, or other tool, within the Licensed Software at its own discretion and with or without prior notice to Customer. InfraSight shall provide Customer written notice prior to discontinuing any material feature or functionality within the Licensed Software.
2. Availability; Support.
2.1 Service Levels.
InfraSight will use commercially reasonable efforts to make the Licensed Software Available at least 99% of the time as measured over the course of each calendar month, excluding unavailability as a result of any of the exceptions described below (“Availability Requirement”). “Available” means the Licensed Software is available for access and use by Customer and its End Users in material accordance with the applicable Documentation.
For purposes of calculating the Availability Requirement, the following are exceptions to the Availability Requirement, and the Licensed Software, will not be considered unavailable due, in whole or in part, to any of the following: (a) access to or use of the Licensed Software by Customer or any End User that does not comply with this SaaS Agreement; (b) delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this SaaS Agreement; (c) Customer’s or its End Users’ internet connectivity and/or local telemetry systems, including, without limitation, failure to send data; (d) a Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by InfraSight pursuant to this SaaS Agreement; (f) Scheduled Maintenance (as defined below); or (vii) Emergency Maintenance (as defined below).
2.3 Scheduled Maintenance.
To maintain performance and security of the Licensed Software, InfraSight may need to perform scheduled maintenance that can cause periods of unavailability of the Licensed Software (“Scheduled Maintenance”); for the avoidance of doubt, InfraSight may perform maintenance it deems non-impactful to the Licensed Software at any time without notice, provided the maintenance does not impair Customer’s availability of the Licensed Software. InfraSight will use commercially reasonable efforts to: (a) conduct Scheduled Maintenance between the hours of 9:00 p.m. and 7:00 a.m., Eastern Time; and (b) give Customer at least forty-eight (48) hours prior notice (including via InfraSight’s support portal) of all Scheduled Maintenance.
2.4 Emergency Maintenance.
Circumstances may require InfraSight to perform unplanned maintenance due to a condition or situation that may cause material disruption or outage to the Licensed Software and/or pose a security risk to the Licensed Software or InfraSight’s systems and networks (such unplanned maintenance, “Emergency Maintenance”). InfraSight will use commercially reasonable efforts to notify Customer with as much advance notice as possible under the circumstance prior to performing Emergency Maintenance.
2.5 Licensed Software Updates.
InfraSight shall provide Customer any update, upgrade, release, or other adaptation or modification of the Licensed Software, including any updated Documentation, that InfraSight provides at no additional charge to other similarly situated customers, provided that Customer is up-to-date and in good standing with their financial obligations to InfraSight.
Customer shall pay all fees due to InfraSight for the provision of the Licensed Software (“Fees”) in accordance with the applicable Customer Order Form. If Customer fails to make any payment when due, without limiting InfraSight’s other rights and remedies: (a) InfraSight may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse InfraSight for all costs incurred by InfraSight in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days or more, InfraSight may suspend Customer’s and its End Users’ access to any portion or all of the Licensed Software until such amounts are paid in full.
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 InfraSight’s income.
4. Term and Termination.
This SaaS Agreement shall commence on the Effective Date and shall continue until for so long Customer or its End Users use or have access to the Licensed Software (“Term”).
4.2 Order Term for Licensed Software.
Unless otherwise set forth in the applicable Customer Order Form, the initial term of each Customer Order Form shall be one (1) year (“Initial Term”). Upon expiration of the Initial Term, the Customer Order Form shall automatically renew for successive one-year periods (each, a “Renewal Term”), unless either party provides written notice of non-renewal within thirty (30) days from expiration of the Initial Term or then-current Renewal Term. To the extent Customer has received the Licensed Software from an authorized reseller of InfraSight, Customer acknowledges that its Customer Order Form will be with such reseller and the duration of the term and renewal obligations will be determined by the reseller. Notwithstanding the foregoing, nothing herein shall prevent InfraSight from terminating Customer’s access to the Licensed Software pursuant to Section 4.3.
4.3 Termination for Breach.
Either party may terminate this SaaS Agreement or any active Customer Order Form upon written notice to the other party if such party breaches this SaaS Agreement and fails to cure such breach (if curable) within thirty (30) days after receiving written notice from the other party specifying the nature of the breach.
4.4 Effect of Termination.
Upon expiration or earlier termination of this SaaS Agreement or a Customer Order Form, Customer shall immediately discontinue use of all applicable Licensed Software, and shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of such Licensed Software and Documentation. The foregoing shall not apply to any Third-Party Materials used in connection with the Licensed Software for which Customer has appropriate rights to continue to use after termination of this Agreement. InfraSight shall not be responsible or liable in any manner for Customer’s continued use of the Third-Party Materials. In addition, Customer shall remove and destroy any Confidential Information of InfraSight and, upon request, shall certify in writing that such actions have occurred. Following any termination or expiration of this Agreement or a Customer Order Form, InfraSight may immediately deactivate Customer’s account associated with the terminated Customer Order Form or this Agreement, as applicable. No expiration or termination of this Agreement or any Customer Order Forms will affect Customer’s obligation to pay all Fees due for the totality of the then-current Initial Term or Renewal Term of any active Customer Order Form or entitle Customer to any refund, provided that if Customer terminates this Agreement or a Customer Order Form pursuant to Section 4.3, InfraSight shall provide Customer a refund of any prepaid, unused Fees.
5. Disclaimer of Warranties.
5.1 Third-Party Materials.
Customer acknowledges that the Licensed Software may contain or incorporate third-party materials or software (“Third-Party Materials”). Without limiting the foregoing, Customer acknowledges and agrees that the Licensed Software may include Open Telemetry Distribution of certain collectors, exporters, and/or receivers. Third-Party Materials are not covered by any warranties set forth in this Section 5. InfraSight makes no representations or warranties with respect to any Third-Party Materials, and all use of Third-Party Materials is at Customer’s own risk.
5.2 DISCLAIMER OF WARRANTIES.
THE LICENSED SOFTWARE AND DOCUMENTATION AND ANY SERVICES PROVIDED BY INFRASIGHT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED DIRECTLY BY INFRASIGHT IN AN AGREEMENT WITH CUSTOMER, INFRASIGHT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INFRASIGHT MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
6. Intellectual Property.
6.1 InfraSight Intellectual Property.
InfraSight, its third-party licensors, and their respective successors and assigns shall retain all right, title, and interest in and to all Intellectual Property Rights used to create or develop, embodied in, used in, or otherwise relating to the Licensed Software, and components thereof. Except for the limited rights expressly granted herein, Customer and its End Users are not granted any right, title, or interest in or to any of the foregoing. To the extent any right, title, or interest in or to any Intellectual Property Rights vests in Customer or its End Users, Customer, on behalf of itself and its End Users, hereby assigns to InfraSight all such right, title and interest. Customer acknowledges and agrees that any goodwill derived from its use of InfraSight’s Intellectual Property Rights inures to the benefit of InfraSight or its licensors, as applicable.
6.2 Prohibited Acts.
Customer shall not: (a) take any action that interferes with any of InfraSight’s Intellectual Property Rights, including InfraSight’s ownership or exercise thereof; (b) challenge any right, title or interest of InfraSight in or to InfraSight’s Intellectual Property Rights; (c) make any claim or take any action adverse to InfraSight’s ownership of InfraSight’s Intellectual Property Rights; (d) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Licensed Software or InfraSight itself; and (e) alter, obscure or remove any of InfraSight’s proprietary rights’ notices, including any patent markings or copyright notices, placed on the Licensed Software.
Customer or any End User may provide InfraSight with comments, ideas, suggested changes, improvements, problems, defects and other feedback relating to the operation of the Licensed Software (collectively, “Feedback”). To the extent Customer or any End User provides any Feedback, Customer, on behalf of itself and its End Users, hereby assigns to InfraSight all right, title and interest therein and thereto, including all associated Intellectual Property Rights.
7.1 Customer Data.
As between Customer and InfraSight, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all information, data and other content provided to InfraSight by or on behalf of Customer or its End Users through the Licensed Software (collectively, the “Customer Data”). Customer grants InfraSight the right to host, use, process, display and transmit Customer Data to provide the Licensed Software pursuant to and in accordance with this SaaS Agreement. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all necessary rights, licenses, and/or consents related to Customer Data required by InfraSight to provide the Licensed Software and perform its obligations hereunder. Without limiting the foregoing, Customer represents and warrants that its third-party service provider(s) (i.e., AWS or otherwise) has provided all necessary rights, licenses, and consents necessary for InfraSight to collect, store, ingest, and analyze data specific to the Customer from such third-party service provider via the Licensed Software.
7.2 De-Identified Data.
Customer grants to InfraSight a non-exclusive, perpetual, royalty-free, assignable, transferrable, sublicensable license to reproduce, distribute, display, create derivative works of, and otherwise exploit the Customer Data solely for the purposes of providing the Licensed Software to Customer and creating the De-Identified Data. As between InfraSight and Customer, InfraSight shall be the sole and exclusive owner of De-Identified Data, and InfraSight and its licensors may use the De-Identified Data for any lawful purposes, including for the purposes of marketing, promoting, benchmarking, improving and further developing the Licensed Software. “De-Identified Data” means all data derived by InfraSight through processing or analyzing the Customer Data and otherwise through the operation of the Licensed Software, provided that the De-Identified Data will not be in a form that could be used to identify Customer or its End Users.
7.3 Analyzed Data.
As between InfraSight and Customer, InfraSight shall be the sole and exclusive owner of all data processed and analyzed by the Licensed Software, including all processed and analyzed Customer Data, that is generated or otherwise made available to the Customer via the Licensed Software (“Analyzed Data”). InfraSight hereby grants to Customer a perpetual, non-exclusive, non-transferable, non-sublicensable license to use the Analyzed Data for its internal business purposes.
7.4 Utilization Data.
The Licensed Software may collect and store utilization data in connection with the manner in which Customer and/or its End Users access and use the Licensed Software, including, but not limited to, central processing unit utilization data, memory utilization data, capacity data, clock speed data, performance data, runtime data, cost data and pricing information relating to consumption of computing resources, metadata, and/or other similar technical data (“Utilization Data”). As between InfraSight and Customer, InfraSight shall be the sole and exclusive owner of Utilization Data.
8.1 By InfraSight.
InfraSight shall indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, damages, losses, demands and expenses of every kind, including reasonable attorneys’ fees, costs and disbursements (collectively, “Damages”), arising out of or relating to any allegations or actual proceedings, investigations, actions, suits or any other claims brought by a third party (collectively, “Claims”) that the Licensed Software, as used in accordance with this SaaS Agreement, infringes, misappropriates or otherwise violates any third-party Intellectual Property Rights.
8.2 By Customer.
Customer will indemnify, defend and hold InfraSight harmless from and against any and all Damages arising out of or relating to any Claims (a) that the Customer Data infringes, misappropriates or otherwise violates any third-party Intellectual Property Rights or other rights; (b) arising out of or relating to Customer’s and/or its End Users’ breach of this SaaS Agreement or Customer’s or any End User’s use of the Licensed Software; or (c) arising out of or relating to Customer’s or any End User’s gross negligence, willful misconduct or illegal acts, including those that cause tangible personal injury or property damage.
8.3 Indemnification Process.
Each party's indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the Claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the Claim; and (c) providing to the indemnifying party all available information and assistance in connection with the Claim, at the indemnifying party's request and expense. The indemnified party may participate in the defense of the claim, at the indemnified party's sole expense (not subject to reimbursement). Neither party may admit liability for or consent to any judgment or concede or settle or compromise any Claim unless such admission or concession or settlement or compromise includes a full and unconditional release of the other party from all liabilities in respect of such Claim.
8.4 Additional Remedies.
Without limiting InfraSight’s obligations set forth in Section 8.1 of this SaaS Agreement, if the Licensed Software becomes, or in InfraSight’s reasonable opinion is likely to become, the subject of a Claim or if as a result of a Claim, or the settlement thereof, the use of the Licensed Software is restricted, prohibited or materially limited, InfraSight may, at InfraSight’s sole option and expense (a) procure the right for Customer to continue using the Licensed Software without any additional cost; (b) replace or modify the same so that it becomes non-infringing without any material impact on its functionality or performance; or (c) terminate this SaaS Agreement and refund to Customer a prorated portion of any prepaid fees covering the period after the effective date of termination.
InfraSight will have no obligation to indemnify Customer under Section 8.1 of this SaaS Agreement to the extent the Claim is based upon (a) the unauthorized modification of the Licensed Software; (b) use of the Licensed Software in combination with other products, processes, equipment, data, materials, software or hardware not provided by InfraSight or contemplated or specified in this SaaS Agreement or in the Documentation accompanying the Licensed Software; or (c) the use of the Licensed Software in a manner not authorized by this SaaS Agreement. Section 8 of this SaaS Agreement states the entire liability of InfraSight with respect to Claims for infringement of any third-party intellectual property rights by the Licensed Software.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING FROM OR RELATING TO THIS SAAS AGREEMENT, EVEN IF THAT PARTY KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. INFRASIGHT’S AGGREGATE LIABILITY FOR DAMAGES ARISING FROM OR RELATING TO THIS SAAS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO INFRASIGHT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
“Confidential Information” means all non-public confidential or proprietary information and materials of any nature of or relating to a party which the other party receives or otherwise becomes aware of in connection with this SaaS Agreement. The Confidential Information of InfraSight includes the non-public elements of the Licensed Software. The Confidential Information of Customer includes Customer Data. The parties will endeavor to conspicuously mark all such information as confidential if in tangible form (or identify it as such if disclosed orally or in other intangible form), but information need not be marked or identified as confidential to be deemed Confidential Information under this SaaS Agreement if, under the circumstances of disclosure, such information is, or ought to be, reasonably understood to be confidential. For the avoidance of doubt, De-Identified Data, Analyzed Data, and Utilization Data shall not constitute Confidential Information unless otherwise agreed to in writing by both parties.
10.2 Confidentiality Obligations.
Each party shall (a) observe complete confidentiality with respect to the disclosing party’s Confidential Information and (b) not use or disclose, or permit to be used or disclosed, the disclosing party’s Confidential Information for any purpose other than as contemplated in this SaaS Agreement. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information to, as applicable, those of its employees and any subcontractors who have a need to know such information to assist the receiving party or act on its behalf pursuant to this SaaS Agreement and who prior to receiving access thereto have signed binding agreements containing confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as those set forth in this SaaS Agreement. Without limiting the generality of the foregoing, each party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care. The obligations of confidence in this Section 10.2 shall not apply to Confidential Information which (i) is known by the receiving party before receipt from the disclosing party, and not impressed already with an obligation of confidentiality to the disclosing party; (ii) is or becomes publicly known without the fault of the receiving party; (iii) is obtained by the receiving party from a third party in circumstances where the receiving party has no reason to believe that there has been a breach of an obligation of confidentiality owed to the disclosing party; or (iv) the receiving party can establish by reasonable proof was substantially and independently developed by the receiving Party or representatives thereof who had no knowledge of such Confidential Information.
10.3 Permitted Disclosures.
The receiving party may disclose the disclosing party’s Confidential Information (a) to the extent required by law or court order, or the requirement of a governmental authority; provided that the receiving party must provide prompt written notice, if allowed by law, and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict the nature and scope of such disclosure; (b) in privileged communications to such party’s agents, attorneys, auditors, insurers and other representatives and only subject to confidentiality obligations at least as protective as those set forth in this SaaS Agreement and (c) in connection with a dispute or proceeding between the parties in accordance with the approval and at the direction of the mediator or arbitrator conducting such proceeding.
10.4 Return of Information.
Upon termination of this SaaS Agreement, or the disclosing party’s earlier written request, the receiving party shall return to the disclosing party, or at the disclosing party’s written request destroy, all records and materials in the receiving party’s possession or control containing the disclosing party’s Confidential Information and promptly certify in writing that it has fully complied with the foregoing obligation. Notwithstanding the foregoing, the receiving party shall be entitled to keep copies of Confidential Information (a) preserved or recorded in any computerized data storage device or component (including any hard drive or database) or saved automatically to standard back-up or archival systems, and/or (b) as required by applicable law or regulation; provided, that such Confidential Information shall remain subject to the confidentiality obligations set forth in this Section 10.
Each party agrees and acknowledges that any breach or threatened breach of this Section 10 may cause irreparable injury to the disclosing party and that the disclosing party shall be entitled to seek injunctive relief, in addition to any other remedies that may be available to it under this SaaS Agreement or at law or in equity.
11.1 Force Majeure.
InfraSight shall not be held liable or responsible to Customer nor be deemed to have defaulted under or breached this SaaS Agreement for failure or delay in fulfilling or performing any term of this SaaS Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of InfraSight including, but not limited to, failure, interruption, or outage of any communication facility, web host, or internet service provider; malicious code, tools, or devices designed to disable or disrupt systems, infrastructure, and operations; earthquakes, fire, floods, and other acts of God; embargoes, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances; acts of war or terrorism; epidemics, pandemics, or other public health events; and omissions or delays in acting by any governmental authority or the other party (“Force Majeure Event”). InfraSight shall notify Customer of such Force Majeure Event as soon as reasonably practical. InfraSight will use commercially reasonable efforts to restore service. If a Force Majeure Event continues for more than sixty (60) consecutive days, then either party may terminate this SaaS Agreement upon written notice to the other party within thirty (30) days after the expiration of the preceding sixty (60) day period.
11.2 Governing Law.
This SaaS Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles that would require the application of the laws of a different jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of or relating to this SaaS Agreement must be brought solely and exclusively in state and federal courts located in North Carolina. The provisions of the United Nations Convention on the International Sale of Goods do not apply to this SaaS Agreement.
Customer may not assign this SaaS Agreement or its respective rights and duties under this SaaS Agreement, without InfraSight’s prior written consent, provided that consent shall not be required to assign to a successor in interest in connection with a merger, acquisition, or sale of all or substantially all of Customer’s assets or voting securities, provided such successor in interest is not a competitor of InfraSight. Any purported assignment in violation of the foregoing will be null and void.
11.4 Independent Parties.
The parties are and will act at all times as independent contractors, and nothing contained in this SaaS Agreement will be construed or implied to create an agency, association, partnership or joint venture between the parties or to obligate either party to deal with the other on an exclusive basis.
11.5 No Third-Party Beneficiaries.
Nothing in this SaaS Agreement is intended to, nor will it, create any third-party beneficiaries, whether intended or incidental, and neither party will make any representations to the contrary.
11.6 Waiver; Severability.
No waivers will be effective unless in writing and signed by both parties. A party’s consent to, or waiver of, enforcement of this SaaS Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion. If a court of competent jurisdiction adjudges any provision of this SaaS Agreement to be illegal, invalid or unenforceable, or if any provision becomes illegal, invalid or unenforceable, the remaining provisions of this SaaS Agreement, if capable of substantial performance, will continue in full force and effect without being impaired or invalidated in any way. The parties agree to reform and replace any illegal, invalid or unenforceable provision with a legal, valid and enforceable provision that most closely approximates the intent and economic effect of the illegal, invalid or unenforceable provision.
Customer shall not issue or release any announcement, statement, press release or other publicity or marketing materials relating to this SaaS Agreement or otherwise use InfraSight’s name or trademarks without the prior written consent of InfraSight.
If one party is required or permitted to give notice to the other, such notice will be deemed given when delivery confirmation is received and such notice is delivered by United States certified mail, return receipt requested, or a nationally recognized overnight courier service to the other party. A party may specify new contacts or a new address by providing notice to the other party in accordance with this Section 11.8. Notwithstanding the foregoing, notices of an administrative nature, such as invoice approvals and electronic invoices, may also be communicated via confirmed email and will be deemed given upon acknowledgement of receipt by the recipient.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to Licensed Software. Customer and InfraSight each agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from Licensed Software will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
11.10 Foreign Corrupt Practices Act.
Each party represents and warrants that (a) in connection with this SaaS Agreement, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any government or any agency or instrumentality thereof and (b) it will comply in all respects with the Foreign Corrupt Practices Act, UK Bribery Act 2010, or any similar applicable laws.
All provisions that by their nature are intended to survive termination or expiration of this Agreement shall survive, including without limitation, Section 4.4 (Effect of Termination); Section 5 (Disclaimer of Warranties); Section 6 (Intellectual Property); Section 7 (Data); Section 8 (Indemnification); Section 9 (Limitation of Liability); Section 10 (Confidentiality); Section 11 (Miscellaneous).
11.12 Entire Agreement.
This SaaS Agreement sets forth the complete, exclusive and final agreement of the parties concerning the subject matter hereof and supersedes, replaces and merges all prior and contemporaneous agreements, communications and understandings, oral and written, between the parties concerning the subject matter hereof.
InfraSight reserves the right to make changes or modifications to this SaaS Agreement from time to time. Any such changes to this SaaS Agreement will be posted via InfraSight’s website at www.infrasightsoftware.com/legal/infrasight-saas-agreement and/or the Licensed Software. Customer’s or its End Users’ use of the Licensed Software thirty (30) days following the posting of the revised SaaS Agreement constitutes acceptance of changes.