Schedule A – General Terms
A1. SUPPORT AND MAINTENANCE
A1.1 Support. Partner will be the first point of contact for all customer enquiries and will be responsible for handling all administrative enquiries. Einsights shall support Partner on technical matters that cannot be resolved by the Partner (such as feature requests, bug fixes or advanced technical support).
A1.2 Service Level Objectives. Partner shall not agree to provide its Users with support and maintenance that exceeds Einsights’ service level objectives as described as part of the respective products´ service specifications, in the Agreement or any separate service level agreement between Einsights and the Partner. Einsights will make best efforts to support the Partner clients subject to the Service Levels outlined in Schedule B
A1.3 Training. Partner shall ensure that appropriate members of Partner’s staff at all times receive the necessary Services training. Einsights will offer training to Partner on the Services as appropriate. Partner shall bear all expenses incurred by or on behalf of its own staff in connection with the training.
A2.1. Provision of Services. Einsights shall make the Services available to Partner pursuant to this Agreement and the relevant Order Forms during the subscription term.
A2.2. Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as subscriptions and the Services may be accessed by no more than the specified number of Users and always in accordance with the User Guide. Partner acknowledges having had the opportunity to review the User Guide prior to entering into this Agreement.
A3. USE OF THE SERVICES
A3.1. Einsights Responsibilities. Einsights shall: (i) Provide to Partner basic support for the Services at no additional charge, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Einsights shall give at least 2 business days’ notice via the Services and which Einsights shall schedule to the extent practical during the weekend hours from 9:00 p.m. Pacific Standard Time (PST) Friday to 2:00 pm (PST) Sunday, or (b) any unavailability caused by circumstances beyond Einsights’ reasonable control, including without limitation acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labour problems (other than those involving Einsights employees), Internet service provider failures or delays, or legal restrictions in accordance with applicable laws and government regulations.
A4. LIMITATION OF LIABILITY
A4.1. Limitation of Liability. OTHER THAN WITH RESPECT TO THE INDEMNIFICATION OBLIGATION SET FORTH IN CLAUSE B5 BELOW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) THE TOTAL AMOUNT PAID BY PARTNER HEREUNDER OR (B) THE ACTUAL DIRECT DAMAGES SUSTAINED BY SUCH PARTY OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF (C) $250,000, (D) THE ACTUAL DIRECT DAMAGES SUSTAINED BY SUCH PARTY RELATED TO SUCH SINGLE INCIDENT, OR (E) THE AMOUNT PAID BY PARTNER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT PARTNER’S PAYMENT OBLIGATIONS UNDER CLAUSE 4.
A4.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
A5. INDEMNIFICATION AND LIABILITY
Subject to Clauses B4.1 and B4.2 above, the Parties make the following representations and warranties:
A5.1 Representations and Indemnities by Einsights. Einsights warrants and represents at all times that Einsights (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, and (ii) that, to the best of its knowledge, the Services will not infringe the copyright held by any third party. In the event that a third party initiates any action against Einsights based on an infringement claim in respect of intellectual property rights of that third party, Einsights may, at its sole option, either (a) obtain for Partner the right to continue using the Services, (b) replace or modify the Services so that the Services no longer infringe or misappropriate the intellectual property rights of a third party; however, providing substantially the same functionality, or (c) terminate the Services. Einsights shall indemnify, defend and hold Partner harmless from and against any and all claims, actions, losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees) resulting from or arising out of or in connection with any breach of the foregoing representations and warranties. Partner shall promptly notify Einsights of all claims and proceedings related thereto of which Partner becomes aware.
A5.2 Representations and Indemnities by Partner. Partner warrants and represents at all times that Partner (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, (ii) owns and/or has the right to use any and all Partner Data, and all materials contained on the Partner and/or its Affiliates websites and/or applications, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (iii) has secured the requisite permission to use any person’s name, voice, likeness and performance, and any Partner Data, as embodied in such materials, (iv) will use the Services in accordance with the terms and conditions hereof and applicable laws and in a manner that, to the best of its knowledge, will not infringe or misappropriate the intellectual property rights held by any third party. In furtherance of the foregoing, Partner agrees to indemnify and hold Einsights harmless from and against any and all claims, actions, losses, damages, liability, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with the breach of the foregoing representations and warranties. Einsights shall promptly notify Partner of all claims and proceedings related thereto of which Einsights becomes aware.
A5.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EINSIGHTS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES HEREUNDER FOR A PARTICULAR PURPOSE OR APPLICATION.
A6. NOTICES, GOVERNING LAW, AND JURISDICTION
A6.1. General. This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by the laws of Australia. Both parties hereby irrevocably submit any disputes under this Agreement to the non-exclusive jurisdiction of the courts located in New South Wales. Each party agrees to the governing law above without regard to choice or conflicts of law rules.
A6.2. Notices. All notices permitted or required to be given hereunder shall be addressed as follows:
To be specified at the time of signing the agreement.
All notices to Partner shall be addressed as follows:
To be specified at the time of signing the agreement.
A6.3. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the date of delivery if sent by registered post or courier, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim, see Clause B6.2 above).
A7. GENERAL PROVISIONS
A7.1. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party under applicable laws.
A7.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
A7.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this clause shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by Partner, Einsights shall refund to Partner any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
A7.4. Confidentiality. Both parties agree to keep the terms and conditions of this Agreement confidential. Additionally, each party agrees in favour of the other party that: all Confidential Information provided to it or which it becomes aware of under a Contract will be kept strictly confidential; will not be disclosed or divulged to any third party, reproduced or used for any purpose or enterprise other than for the purpose of a Contract, without the consent of the owner of the Confidential Information; and will be safely and securely stored when not in use.
A7.5 Trademark License. In connection with Partner’s activities authorized pursuant to this Agreement, Partner is granted a non-transferable, non-exclusive right to use the Trademarks in accordance with instructions given from time to time by Einsights. Partner shall not attach any additional trademarks, service marks, or trade names to the Services and shall not use Einsights’ trademarks as part of Partner’s trademarks, service marks or trade names or in any other manner that would tend to imply that Partner has an affiliation with Einsights other than as set forth in this Agreement.
A7.6 Title. Einsights and its suppliers retain the ownership of all right, title and interest in and to the Services, Trademarks, and all patents, copyrights and other proprietary rights therein, and Partner shall acquire no rights therein except as expressly set forth in this Agreement. Einsights shall own all rights, title and interest in all developments of and enhancements to the Services. Partner shall take no action, which may adversely affect or impair Einsights’ ownership of such materials and rights.
A7.7 Taxes. Unless otherwise stated, the Einsights fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes“). Partner is responsible for paying all Taxes associated with Partner’s purchases hereunder. For clarity, Einsights is solely responsible for Taxes assessable against it based on Einsights’ income, property, and employees.
A7.8 Compliance with Laws. At all times, Einsights and Partner shall comply with all laws, rules, ordinances, decrees and regulations applicable to their activities under this Agreement. Each shall indemnify the other party for any costs, expenses, injury and damage caused as a result of its failure to comply with applicable laws, rules, ordinances, decrees and regulations.
A7.9 Modification to the terms. Einsights may, upon one (1) months’ notice, amend any clause in this agreement at it’s sole discretion. Partner can chose to continue or terminate the contract upon receipt of such an amended contract subject to Clause 5.
A7.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions inserted by Partner in Partner’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Schedule B – Einsights Service Level Commitments
Einsights will provide Partner with the following third-level support services:
- bug fixes for the Einsights Service
- updates for the Einsights Service to the extent that Einsights generally provides such updates without separate charge
- access to Einsights’ support personnel by phone, online support tools and email
- unlimited support free of charge for the first six (6) months following the Effective Date
- twenty five (25) hours of free support each month from the seventh month following the Effective Date and onward
- additional support (beyond the twenty five (25) hours of free support)the will be provided at $100 USD per hour, in one-hour increments
Einsights’ third-level support to Partner will follow the following procedure:
- Einsights’ engineering team will respond to every issue logged with a reference number within six (6) business hours (8 am to 8 pm Monday to Friday, excluding public holidays)
- Einsights will provide an approximate time frame for resolving the issue depending on the severity of the issue
- Einsights will provide regular feedback if the resolution period estimate is greater than one week
- Partner may request a status update at any time during support hours by quoting the reference number
- If the issue is not resolved by the Einsights engineering team during the estimated resolution time, Partner may escalate the matter to the Management Representatives of Einsights.
Last updated Feb 9, 2016