1.1. LICENSE GRANT
Subject to the terms of this Agreement, CoreView hereby grants to Client and its Affiliates (as defined herein) a limited, non-transferable, non-sublicensable and nonexclusive license:(i) to access and use the purchased edition of the CoreView Platform and for which Client has registered and paid the corresponding fees for Client’s own business purposes and in accordance with all applicable laws; and (ii) to allow its authorized directors, officers, employees, partners, advisers, contractors, customers and agents (“End Users”) to access and use the CoreView Platform for the foregoing purposes. The foregoing license grant also includes a license to use any related Documentation (as defined herein). Client and its Affiliates shall be entitled to make a reasonable number of copies of the Documentation in connection with their use of the CoreView Platform hereunder. For purposes of this Agreement, “Affiliates” of Client means any entity that directly or indirectly controls, is controlled by, or is under common control with Client; and “Documentation” means all specifications, user manuals, and written materials and documentation relating to the performance, operation and/or use of the CoreView Platform, as well as any written proposals, program manuals and marketing materials submitted by CoreView to Client.
1.2. PLATFORM RESTRICTIONS
The limited license granted in Section 1.1is subject to the following restrictions: (a) except as otherwise set forth herein, no provision of this Agreement grants Client a license under any CoreView intellectual property rights, and no license is granted to Client by implication or estoppel; (b) Client shall not reverse engineer, disassemble, decompile, otherwise attempt to derive the source code of the CoreView Platform, or permit others to do any of the foregoing; . Client may not: (i) use the CoreView Platform to send or store material containing software viruses, worms, Trojan horses or other harmful computer code; (ii) interfere with or disrupt the integrity or performance of the CoreView Platform or the data contained therein; (iii) attempt to gain unauthorized access to the CoreView Platform or related systems or networks; (iv) use the CoreView Platform for any benchmarking or competitive purposes; (v) use the CoreView Platform to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the CoreView Platform, or copy any ideas, features, functions or graphics of the CoreView Platform; (vi) access or use (or attempt to access or use) a CoreView Platform user’s account without permission; (vii) “frame” or “mirror” any portion of the CoreView Platform; (viii) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the CoreView Platform; (ix) probe, scan or test the vulnerability of the CoreView Platform, or breach the security or authentication measures on the CoreView Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the CoreView Platform, such as a denial of service attack; (x) use the CoreView Platform to send or otherwise post unauthorized commercial communications (such as spam); or (xi) use the CoreView Platform to engage in unlawful multi-level marketing, such as a pyramid scheme. Client shall not aid or permit others to do any of the foregoing.
Client shall adhere to all applicable export control laws and regulations with respect to the CoreView Platform, and will not export or re-export or permit access to the CoreView Platform, in whole or in part, directly or indirectly, to any country to which such export or re-export is restricted by any laws or regulations of the U.S. unless properly authorized by the U.S. Government . Client represents that it is not named on any U.S. or other applicable government denied-party list.
2.1. CLIENT DATA
Client shall retain exclusive ownership of all rights in any and all Client Data (as defined herein). Subject to the terms and conditions of this Agreement, Client grants CoreView a nonexclusive, nontransferable, non-sublicensable, worldwide, license to use, copy and display Client data, information and other content transmitted, uploaded and/or generated to or through the CoreView Platform (“Client Data”) solely to provide the CoreView Platform to Client and to improve performance of the CoreView Platform for Client in accordance with the terms of this Agreement. For the avoidance of doubt, Client Data shall include, without limitation, all data generated or supplied by Client’s Affiliates, End Users, customers and subscribers. CoreView will not use, sell, rent, transfer, distribute or otherwise disclose or make available Client Data for CoreView’s own purposes or for the benefit of any person or entity other than Client without Client’s prior written consent expressly authorizing the specific use and/or disclosure.
2.2. DATA PROTECTION
CoreView represents, warrants and covenants that it will treat all Client Data in accordance with CoreView then applicable privacy policies, privacy statements and applicable law.
2.3. ACCURACY OF DATA
CoreView will endeavor to collect Data from Microsoft on behalf of the Client at least one every 24 hours, where the time of collection is decided by CoreView. It will ensure that Data presented to the Client is accurate and not in any way changed. The Customer acknowledges that the Data provided by CoreView has been sourced from Microsoft and that it does not hold CoreView responsible for any inaccuracies or defects of any Data presented to the Customer unless caused by a Defect in the Platform or otherwise due to the actions or inactions of CoreView and that from time to time CoreView may not be able to collect Data from Microsoft due to a Force Majeure Event or Service affecting issues outside of CoreView’s control.
Client is responsible for all use of the CoreView Platform and Customer Data by its End Users, and for their compliance with this Agreement, and any breach of this Agreement by such End Users shall be deemed to have been a breach by Client.
3.1 SUPPORT SERVICES
During the Term, CoreView shall provide Client with technical support and maintenance for the CoreView Platform in accordance with the service level agreement set forth in the applicable Ordering Document (the “Support Services”). The Support Services shall include: (a) responding to and remedying problems with the CoreView Platform; and (b) access to technical support in accordance with the terms of this Agreement.
3.2 SERVICE LEVELS
The CoreView Platform will be subject to and will meet or exceed the service and performance level terms set forth in the service level agreement(s) attached to Exhibit A (the “Service Level Agreement”).
3.1.3. Backup. CoreView at its expense, shall make a complete daily backup of all Client Data stored by CoreView under this Agreement, no less than once per day during the Term.
3.4. DISASTER RECOVERY PLAN
CoreView shall maintain and keep current a disaster recovery plan for all CoreView locations .
3.5. SUPPORT SERVICE LOCATION
Support will be provided by the US or European Support Team based on competencies
4. LIMITED WARRANTIES AND DISCLAIMERS
Each party warrants that it has the authority to enter into this Agreement. Client represents and warrants to CoreView that Client has the right to deliver the Client Content to CoreView and to allow CoreView to use, copy, modify, distribute, display and publicly perform Client Content. THE EXPRESS WARRANTY MADE BY COREVIEW ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE COREVIEW PLATFORM OR ANY INFORMATION OR SERVICES RELATING TO THE COREVIEW PLATFORM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED. COREVIEW DOES NOT WARRANT THAT THE COREVIEW PLATFORM OR ANY INFORMATION OR SERVICES MADE AVAILABLE IN CONNECTION WITH THIS AGREEMENT OR THE COREVIEW PLATFORM WILL BE ERROR OR DEFECT-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR THAT ERRORS, DEFECTS OR BUGS CAN OR WILL BE CORRECTED.
5.1. INDEMNIFICATION BY CLIENT
Client shall indemnify, defend and hold CoreView, its Affiliates and licensors, and their respective officers, directors, and employees harmless from any losses, damages, costs and expenses directly or indirectly arising out of any claim from any party arising out of or relating to (i) Client’s or its End Users’ use of the CoreView Platform, unless such claims are caused by CoreView’s negligence or is covered by CoreView’s defense obligations in Section 5.2; (ii) Client’s noncompliance with applicable laws or breach of this Agreement.
5.3. INDEMNIFICATION PROCESS
The requesting Party shall promptly notify the other Party in writing no later than thirty (30) days after its receipt of notification of any claim or potential claim.;(b) the requiring Party shall permit the other Party to assume sole control of the defense of such claim and all related settlement negotiations; and(c) requiring Party shall provide the other Party, at it’s request and expense, with the reasonable assistance, information and authority necessary to perform it’s obligations under this Section 5. Client may not make any admissions or consent to any judgment or settlement in respect of any IP claim without CoreView’s prior written consent.
5.2. INDEMNIFICATION BY COREVIEW
CoreView shall indemnify, defend and hold Client, its Affiliates and licensors, and their respective officers, directors, and employees harmless from any losses, damages, costs and expenses directly or indirectly arising out of any claim from any party arising out of or relating to i) personal injury or property damage caused by the fault or negligence of CoreView or a CoreView employee; (ii) any willful, intentional or negligent action or failure to act by CoreView or CoreView Employees iii) If a third party makes a claim against Client alleging the CoreView Platform (excluding Client Content) directly infringes any U.S. patent, U.S. copyright, or trademark or misappropriates any trade secret (“IP Claim”).
CoreView hall have no liability for any Claim of infringement based on (i) the unauthorized modification of the CoreView Platform, (ii) use of the CoreView Platform other than in accordance with the provided Documentation and this Agreement, or (iii) Client Content. If, due to an IP Claim or the threat of an IP Claim, (a) the Platform or Software is held by a court of competent jurisdiction to be infringing, or in CoreView’s reasonable judgment may be held to infringe by such a court, or (b) Client receives a valid court order enjoining Client from using the CoreView Platform or Software, or in CoreView’s reasonable judgment Client may receive such an order, CoreView may, at its option (1) replace or modify the CoreView Platform or Software to be non-infringing; (2) obtain for Client a license to continue using the CoreView Platform or Software or (3) terminate this Agreement upon notice and refund prepaid but unused amounts received from Customer in respect of the balance of the Term. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF COREVIEW AND ITS AFFILIATES TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF COREVIEW HAS BEEN ADVISED OF SUCH CLAIM. The aggregate and cumulative liability of either party to the other for damages arising out of or relating to this Agreement shall in no event exceed the amount of fees paid by Client to CoreView under the applicable Ordering Document during the twelve (12) months immediately preceding the cause of action. Parties do not exclude or limit its liability for death or personal injury caused by its negligence or for fraud.
CoreView reserves all rights not expressly granted to Client in this Agreement. Without limiting the generality of the foregoing, Client acknowledges and agrees that any implementation, customization, configuration or deployment of the CoreView Platform for Client shall not affect or diminish CoreView’s rights, title, and interest in and to the CoreView Platform. As between the parties, CoreView and its licensors, suppliers and customers retain all worldwide right, title and interest in and to the CoreView Platform, including all worldwide intellectual property rights therein, and CoreView solely and exclusively owns all right, title and interest therein and thereto, and to all derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Client shall not act in any manner inconsistent with such ownership. If Client suggests any new features, functionality, or improvement to the CoreView Platform (“Feedback”), Client acknowledges that all Feedback and products or services incorporating such Feedback are the sole and exclusive property of CoreView, and Client hereby irrevocably assigns to CoreView all intellectual property rights and all other rights and title to such Feedback.
8. GENERAL TERMS
8.1. COREVIEW PLATFORM UPDATED
Client acknowledges and agrees that CoreView may from time to time updated and make changes to the CoreView Platform without changing any core functionality to i) full fill market needs and demand, or ii) due to changes of Client’s Data availability from Microsoft or iii) due to changes in applicable law.
All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected. This Agreement may be modified by CoreView time to time following the service eveolution and eventual law constrain; If any material change will occour CoreView will notify Client. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. This Agreement, together with each Ordering Document, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements, oral and written, between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Client purchase order, and such terms are rejected by the parties.
8.3. FORCE MAJEURE
Each party will be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including, but not limited to, acts of God, power outages, or failures of the Internet, provided that the party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated.
8.4. GOVERNING LAW
The interpretation of this Agreement shall be governed by the laws of the State of New York, USA, without regard to its conflict of laws principles. The United Nations Convention for the International Sale of Goods is excluded. The parties agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts in County of New York, USA.
All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected. This Agreement may be modified or amended only by a written agreement signed by both parties. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. This Agreement, together with the Service Terms and Conditions, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Client purchase order, and such terms are rejected by the parties.
SERVICE LEVEL AGREEMENT
1.AVAILABILITY OF COREVIEW PLATFORM
CoreView will ensure that the CoreView Platform shall be available to Client at least 99.90% of the time during any calendar month (“Availability Commitment”). Notwithstanding the foregoing, CoreView may interrupt service for routine maintenance purposes for up to eight (8) hours per month (“Scheduled Downtime”).
2. SERVICE CREDITS
If, in any calendar month during the Term, the availability of the CoreView Platform fails to meet the Availability Commitment, CoreView will grant Client a service credit (“Service Credit”) for that month in accordance with the chart below. Without limiting the foregoing, if CoreView fails to meet the Availability Commitment for any four (4) consecutive calendar months, Client shall have the right to terminate the Agreement for cause and without further liability, in accordance with Section 3 of the Agreement.
|*CoreView Platform Availability (Monthly)
||Service Credit % of MONTHLY FEES
|99.89 – 99.00%
|98.99 – 98.00%
“CoreView Platform Unavailability” is defined as the number of minutes in which the CoreView Platform, or any core functionality of the CoreView Platform, is not available, but does not include any unavailability that is caused solely by: (a) Scheduled Maintenance; (b) acts or omissions of Client or its End Users in violation of the Agreement; (c) failures within Client’s internal network or of Client-controlled connectivity to the CoreView Platform; (e) Microsoft issue or (f) force majeure events as described in Section 8.5 of the Agreement.
3. HELP DESK
CoreView will make available, during Business Hours (07:00 – 23:00 GMT on a Business Day), an email based helpsesk facility for the correction fo defects.
4. CORRECTION OF DEFECTS
In addition to meeting the Availability Commitment set forth above, CoreView will correct problems with the CoreView Platform (“Problems”) in accordance with the following terms. CoreView wil provide an email address (email@example.com) to which Client can report Problems with the CoreView Platform. All support services will be provided remotely. All Problems will be categorized in accordance with the category definitions below
- Severity 1 Problem. A Severity 1 Problem arises when the CoreView Platform is unable to function properly in a production environment due to a failure of the CoreView Platform to conform to the documentation and/or specifications.
- Severity 2 Problem. A Severity 2 (production environment) Problem arises when a Problem exists with the CoreView Platform that materially impacts Client’s business operations, although the CoreView Platform is substantially operational.
- Severity 3 Problem. A Severity 3 Problem arises when a Problem exists with the CoreView Platform that does not materially impact Client’s business operations.
- “On Time Incidents” refer to Response and Restore times that meet or exceed the Response and Restore targets as defined in the Helpdesk/TAC Case Priority: Response & Restore Performance Objectives table.
- “Response” means the time it takes from Client’s initial email or telephone call notification of the Problem until CoreView responds to the appropriate Client personnel.
- “Restore” means the time it takes for CoreView to provide a correction or modification of the CoreView Platform that corrects the Problem.
5. DISASTER RECOVERY
CoreView’s disaster recovery plan shall provide, at a minimum, that (a) the core functions of the CoreView Platform will come back online and be available within twenty-four (24) hours after the declaration of a disaster; and (b) the CoreView Platform will be fully functional and operating in accordance with this Service Level Agreement within five (5) days after a declaration of a disaster.
6. LIMITS ON SUPPORT SERVICE
CoreView shall have no obligation under this Agrement to provide Support Services in respect of any fault or error caused by:
- The improper use of the Platform; or
- The use of the Platform otherwise than in accordance with the Documentation