PLEASE READ THIS RIGHTITNOW ECM CLOUD SERVICES LICENSE AGREEMENT CAREFULLY. THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF THE RIGHTITNOW ECM CLOUD SERVICES UNLESS YOU AND RIGHTITNOW HAVE SIGNED A SEPARATE AGREEMENT FOR THE LICENSING OF THE RIGHTITNOW ECM CLOUD SERVICES. IF YOU REGISTERED FOR A FREE EVALUATION FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE EVALUATION.
RIGHTITNOW, INC. (“RIGHTITNOW”) IS WILLING TO PROVIDE THE RIGHTITNOW ECM CLOUD SERVICE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR USING THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT ALL THE TERMS OF THIS AGREEMENT, THEN: (A) RIGHTITNOW IS UNWILLING TO PROVIDE THE RIGHTITNOW ECM CLOUD SERVICE TO YOU AND (B) YOU SHOULD NOT ATTEMPT TO USE THE SERVICES.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF RIGHTITNOW, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITON, YOU MAY NOT ACCESS THE SERVICES FOR THE PURPOSES OF BENCHMARKING PERFORMANCE, AVAILABILITY OR FUNCTIONALITY OR ANY OTHER COMPETITIVE PURPOSES.
This Master Subscription Agreement, together with any attachments and any and all Order Forms (as defined below) accepted by RightITNow and You which reference this Master Subscription Agreement (collectively, the “Agreement”), is effective as of the date You accept this Agreement (the “Effective Date”).
This Agreement sets forth the basic terms and conditions under which services will be delivered to You. This Agreement shall govern Your initial purchase on the Effective Date as well as any future purchases made by You, which reference this Agreement.
1. Definitions
“Affiliate” means any entity under the control of You where “control” means ownership of or the right to control greater than fifty percent (50%) of the voting securities of such entity.
“Documentation” means the technical specification documentation generally made available by RightITNow to its customers with regard to the Services.
“Managed Entity” or (“ME”) is a device that generates an event including but not limited to a, (i) Server and/or single instance of a Virtual Machine, (2) Per instance of an application generating events, (iii) Network Device i.e. router where the total number of virtual ports per Managed Entity is less than 100, each additional 100 virtual ports counts as another ME, (iv) Network Appliance such as a Firewall, (v) Database Instance or (vi) In a cluster environment a ME is defined as each physical server, each instance of a application running on each machine.
“Order Form” means the documents used for placing orders issued by You referencing this Agreement. Any terms and conditions contained in any Order Form that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such Order Form, unless expressly agreed to in writing by RightITNow.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free evaluation or Freemium subscription.
“Services” means the products and services that are ordered by You under a free evaluation or an Order Form and made available to You including associated offline components, as described in the Documentation.
“You” or “Your” means the company or other legal entity for which you are accepting the Agreement, and Affiliates of that Company or entity.
2. Free evaluation.
If You register on our website for a free evaluation, RightITNow will make one or more of our services available to You on a evaluation basis free of charge until the earlier of (a) the end of the free evaluation period or (b) the start of any Purchased Services ordered by You. At the end of the free evaluation period You have the following options, (i) stop using the service, (ii) request an extension, (iii) Purchase the Services or (iv) continue using the Services under a Freemium subscription (“Freemium”). A Freemium subscription is a Subscription that allows you to use the software for up to 100 Managed Entities. RightITNow reserves the right to terminate the Freemium service option at any time and your data and system configurations may not be preserved. Additional evaluation and Freemium terms may appear on the trial registration webpage. Such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTERED INTO OR ACCUMULATED AND CONFIGURATIONS MADE DURING THE FREE EVALUATION WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBCRIPTION FOR THE SERVICES BEFORE THE END OF THE EVALUATION PERIOD.
NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE FREE EVALUATION AND FREEMIUM SUBSCRIPTION THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. Purchased Services
3.1 Provision of Purchased Services. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, RightITNow shall provide You access to the Purchased Services specified in an Order Form for Your own internal use of the Services, but only in accordance with (i) Documentation, (ii) this Agreement, and (iii) the Subscription Term and any limitations including Managed Entity or other restrictions set forth in the applicable Order Form. Services shall also include any Documentation and any Support and Maintenance provided to You under this Agreement.
3.2 Use by Affiliates. Subject to the terms and conditions of this Agreement, Your Affiliates may use the Purchased Services granted to You, provided that (a) such use is only for Your benefit, (b) You agrees to remain responsible for each such Affiliate’s compliance with the terms and conditions of this Agreement. Use of the Services by all Affiliates and You in the aggregate must be within the restrictions in the applicable Order Form. The Affiliate rights granted in this section shall not apply to any “enterprise wide” or unlimited (or other unlimited quantity) Services unless Affiliate usage is designated in the applicable Order Form.
4. Proprietary Rights
4.1 Reservation of Rights in Services. Notwithstanding anything to the contrary contained herein, except for the limited rights expressly provided herein, RightITNow and its suppliers have and will retain all rights, title and interest in and to the Services (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. You acknowledges that it is obtaining only a limited license right to the Services and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to You under this Agreement or otherwise.
4.2 Restrictions You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
4.3 Suggestions RightITNow shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
5. Use of Services
5.1 Our Responsibilities RightITNow shall: (i) provide our basic support for the Purchased Services to You at no additional charge (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which RightITNow shall give at least 8 hours notice via the Purchased Services and which RightITNow shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
5.2 Our Protection of Your Data RightITNow shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. RightITNow shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with You support matters.
5.3 Your Responsibilities You shall (i) be responsible for Users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify RightITNow promptly of any such unauthorized access or use, and (iii) use the Services only in accordance with the Documentation and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5.4 Usage Limitations Services may be subject to other limitations, such as, for example, limits on disk storage space.
6. Subscription Term, Fees, and Payment
6.1 Subscription Term and Renewals. The term of any Subscription shall be one (1) year commencing on the Effective Date of the applicable Order Form (unless otherwise designated in the Order Form). Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable, and (iii) the number of Managed Entities purchased cannot be decreased during the Subscription Term. Each Subscription Term shall automatically renew for subsequent periods of the same length as the initial Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term. The rates for any Subscription Term renewals shall be RightITNow’s then-current Subscription rates.
6.2 Subscription Fees. You shall pay all fees for each Subscription as specified on the applicable Order Form. You may purchase additional Subscriptions by entering into additional Order Forms with RightITNow. The Subscription fee for each additional Subscription will be RightITNow’s then-current Subscription fee. RightITNow reserves the right to modify its Subscription fees at any time, upon at least thirty (30) days prior notice to You, which notice may be provided by e-mail.
6.3 Payment Terms. All fees are as set forth in the applicable Order Form and shall be paid by You within thirty (30) days from invoice unless otherwise specified in the applicable Order Form. All payments are non-refundable (except as expressly set forth in this Agreement). You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of RightITNow). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed RightITNow by law, whichever is less.
7. Term of Agreement
7.1 Term. This Agreement is effective as of the Effective Date and expires on the day that the last Subscription Term for any Services licensed hereunder expires (the “Term”).
7.2 Termination for Cause Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
7.3 Refund or Payment upon Termination Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to RightITNow for the period prior to the effective date of termination.
7.4 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to RightITNow under this Agreement before such termination will be immediately due and payable; (b) You shall cease any and all use of the Services; and (c) each party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement.
7.5 Survival. 6.2 (Subscription Fees), 6.3 (Payment Terms), 7 (Term of Agreement), 8.3 (Disclaimer), 9 (Limitation of Remedies and Damages), 11 (Confidential Information) and 12 (General) shall survive any termination or expiration of this Agreement.
8. Limited Warranty and Disclaimer
8.1 Our Warranties RightITNow warrant that (i) RightITNow has validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the Documentation, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) RightITNow will not transmit Malicious Code to You, For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 7.2 (Termination for Cause) and Section 7.3 (Refund or Payment upon Termination).
8.2 Your Warranties You warrant that You have validly entered into this Agreement and have the legal power to do so.
8.3 Disclaimer EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.4 Beta Services RightITNow may offer to You to try, at no charge, product or services that are not generally available to RightITNow’s customers (“Beta Services”). You are free to accept or reject such offers. Any Beta Services will be clearly designated. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. RightITNow may discontinue Beta Services at any time in RightITNow’s sole discretion and may never make them generally available.
9. Limitation of Remedies and Damages
9.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (IN THE CASE OF RIGHTITNOW’S LIABILITY TO YOU) OR PAYABLE (IN THE CASE OF YOUR LIABILITY TO RIGHTITNOW) BY YOU TO RIGHTITNOW UNDER THIS AGREEMENT.
9.3 THIS SECTION 9 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “PROVISION OF PURCHASED SERVICES,” “RESTRICTIONS” OR “CONFIDENTIAL INFORMATION”.
9.4 The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. Indemnification
10.1 Indemnification by RightITNow In the event You have purchased a Purchased Subscription, RightITNow shall indemnify and hold harmless You from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against You by a third party based upon Your use of the Services in accordance with the terms of this Agreement, provided that RightITNow shall have received from You: (i) prompt notice of such claim (but in any event notice in sufficient time for RightITNow to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of You. If Your use of any of the Services is, or in RightITNow’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, RightITNow may, in its sole discretion: (a) substitute for the Services substantially functionally similar programs and documentation; (b) procure for You the right to continue using the Services; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to You the pro-rata portion of the Subscription fees paid by You allocable to the unused remainder of the Subscription Term.
10.2 Indemnification by You You shall defend RightITNow against any claim, demand, suit or proceeding made or brought against RightITNow by a third party alleging that Your data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us“), and shall indemnify RightITNow for any damages, attorney fees and costs finally awarded against RightITNow as a result of, or for any amounts paid by RightITNow under a court-approved settlement of, a Claim Against Us; provided that You shall have received from RiveMuse: (i) prompt notice of such claim (but in any event notice in sufficient time for You to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of RightITNow.
THIS SECTION 10 SETS FORTH (MUTUAL INDEMNIFICATION) STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION.
11. Confidential Information
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Services, documentation or technical information provided by RightITNow (or its agents), performance information relating to the Services, and the terms of this Agreement shall be deemed Confidential Information of RightITNow without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
12. General
12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts.
12.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
12.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by You will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.7 Entire Agreement. This Agreement (including the Order Forms) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. You acknowledge that RightITNow products are subscription-based products and that, in order to provide improved You experience, RightITNow may make changes to RightITNow products (including the Services or the Subscription offerings) or Documentation. In such event, RightITNow will update the Documentation accordingly.
12.8 Audit Rights. Upon RightITNow’s written request, You shall certify in a signed writing that Your use of the Services is in full compliance with the terms of this Agreement (including any CPU, Managed Entity and/or device limitations). With prior reasonable notice of at least 10 days, RightITNow may audit the copies of the Services in use by You provided such audit is during regular business hours; You is responsible for such audit costs only in the event the audit reveals that Your use is not in accordance with the licensed scope of use.
12.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.10 Government End-Users. If the user or licensee of this commercial computer Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of this Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this contract in accordance with Federal Acquisition Regulation 11.211 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. This product was developed fully at private expense. All other use is prohibited.
12.11 Third-Party Code. As designated in the Documentation, the Services contain or will be provided with certain third-party code. Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation.
12.12 Transmission of Information by Services for Support Purposes. You understand and acknowledge that the Services may contain a feature that sends information about the technical operation of the Services on Your computer systems to RightITNow. Such information may include the operating system on which the Services is running, as well as the applicable Services and Java version numbers and basic statistics on the usage of RightITNow including but not limited to entity and user count. This feature may be disabled by You by following the instructions provided by RightITNow.