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PROFESSIONAL SERVICES AGREEMENT

this professional services AGREEMENT terms and conditions (these “services terms”) govern the services (as defined below) to be provided by  Inscale Technologies, LLC (“Inscale”) to the customer (“customer”) pursuant to a STATEMENT OF WORK (“SOW “) (as defined herein). BY EXECUTING A SOW, customer is ACCEPTING and agreeing to THese services terms and the terms of such SOW, which upon execution become part of and subject to these services terms. these SERVICEs terms AND EACH SOW executed by customer TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND inscale (collectively, thIS “services agreement”). each SOW executed by customer shall be effective as of the date specified therein or, if no such date is specified, the date CUSTOMER executed the SOW. inscale and customer may be referred to individually as a “party and, collectively, as the “parties”.

1.       Definitions.

Affiliate” means a company which is controlled, under common control or controlling a party or entity during the period of such control. For the purposes of this Services Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities of a party or entity.

Deliverable” means any and all property, reports, analyses, recommendations, data, databases, specifications, software, documentation, items, videos, recordings, and other materials provided, created, developed, and/or delivered pursuant to and as described in a SOW.

Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a Party.

Inscale Subscription Services” means Inscale’s proprietary Web-based platform and associated modules, components and updates thereto provided by Inscale as a subscription service pursuant to the terms of the Master Subscription Agreement (“MSA”).

Master Subscription Agreement” or “MSA” means the Inscale online agreement agreed to by Customer (or its Affiliate) covering Customer’s access to and use of Inscale’s subscription Services (referred to herein as “Subscription Services) described in the MSA and associated Inscale software platform as described in each Order Form (as defined in the MSA) covering the provision of such Inscale Subscription Services.

Services” means the technical, implementation or professional services and any related Deliverables provided or to be provided by Inscale for Customer under a SOW describing such services and these Services Terms. The Services performed under a SOW may be referred to as “Professional Services”, “Technical Services” or “Admin Services”, as applicable, based on the nature and type of such Services.

Statement of Work” or ”SOW” means a written or electronic (a) order, (b) statement of work, or (c) other ordering document specifically incorporating these Services Terms and all exhibits or other documents attached to or incorporated by reference (“Attachments”) therein, describing the Services purchased by Customer and executed by the Parties or Customer alone, as applicable.

Work Product” means all software, works of authorship, and/or work developed for Customer in the course of providing the Services, including any Deliverables produced or developed in connection therewith, whether produced solely or jointly with others.

 

2.       Provision of Services.

Subject to the payment by Customer to Inscale of the applicable Fees (as defined in 3.1), Inscale will provide the Services under the SOW. Any scheduling required for the Services to be performed or delivered will be described in the SOW. Inscale will not be responsible for providing any services, tasks, or items that are not included in the description of services in the SOW as such services, tasks, or items shall be deemed out of scope for such SOW and will require the execution of an additional SOW or a change order to an existing SOW with associated Fees. Inscale reserves the right, in its sole discretion, to use, assign and remove personnel in performing the Services. If the Services will be made available to any Customer Affiliate(s) pursuant to the terms of this Professional Services Agreement, then the term “Customer” shall also include such Customer Affiliate(s) identified in a SOW. Inscale will provide Services under this Professional Services Agreement only to Customer’s (or a Customer Affiliate’s).

3.       Fees.

3.1.              Invoice and Payment.

The fees for the Services provided to Customer are determined in accordance with the terms of the applicable SOW covering such Services and, together with any other amounts due under this Services Agreement (collectively, the “Fees”), are quoted and payable in United States dollars. Unless otherwise provided in the applicable SOW, all Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) shall be due and payable upon receipt. Customer shall provide Inscale with complete and accurate billing and contact information including a valid email address for receipt of invoices. All Fees and payment obligations for Services under any SOW are non-cancelable and Fees paid are non-refundable and quantities purchased cannot be decreased.

3.2.              Incidental and Project Expenses.

Customer shall reimburse Inscale for all reasonable travel, food, lodging and other out-of-pocket expenses incurred in the performance and/or provision of the Services. Specific types of travel expenses and rates will be billed at the rates included in the SOW. If Inscale incurs any additional of the foregoing or additional costs or expenses in providing the Services, such expenses may be invoiced separately.

3.3.              Overdue Payments.

Without limiting Inscale’s rights and remedies under this Services Agreement or by Law, any Fees not paid by Customer (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) within thirty (30) days of the invoice date shall accrue late charges at the rate of one and one percent (1.0%) of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses and fees of collection (including attorneys’ fees and court and administrative costs).

3.4.              Taxes.

The Fees are exclusive of all shipping costs, and federal, state and local sales, value-added taxes, goods and services taxes, use, excise, service, transaction, gross receipts or similar taxes imposed on the Services (collectively, “Taxes”), any and all of which Customer agrees to pay, excluding taxes assessable against Inscale on its income, property, and employees. Customer shall make all payments required without deduction of any Taxes, except as required by Law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Inscale receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer is exempt from paying any applicable Taxes, Customer shall promptly provide written evidence reasonably satisfactory to Inscale of its tax-exempt status, and Inscale will not include such Taxes in Customer’s invoices.

3.5.              Suspension of Services for Non-Payment.

If Customer’s account is more than thirty (30) days past due (except with respect to any disputed Fees then subject to a Billing Dispute under Section 3.6), in addition to any other rights or remedies it may have under this Services Agreement or by Law, Inscale reserves the right to cease providing any or all Services currently being performed or to be performed for Customer, without liability to Inscale for such suspension, and such Services shall only be resumed if Customer pays the full amount of such invoiced Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) are paid in full.

3.6.              Billing Disputes.

Any dispute involving invoiced Fees (a “Billing Dispute”) must be in writing and submitted to Inscale within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed Fees as well as the reasonable and good faith bases for why a credit or refund is being requested (a “Billing Dispute Notice”). Customer shall cooperate with Inscale to promptly address and attempt to resolve any Billing Dispute submitted in accordance herewith. Customer acknowledges and agrees that, in the event Customer does not submit a timely Billing Dispute Notice as required in this Section, Customer waives all rights to dispute such invoice and all Fees set forth in such invoice will be considered correct and binding on Customer. Notwithstanding any dispute of invoiced Fees commenced in accordance with this Section 3.6, Customer shall remain obligated to pay in a timely manner all undisputed Fees within thirty (30) days of the invoice date.

4.       Proprietary Rights; Ownership.

4.1.              Inscale Property.

In performing the Services, Inscale may use products, materials, information, ideas, concepts, know-how, techniques, tools, templates, models, software, procedures, documentation, technology, interfaces, data and/or databases, reports, processes, best practices and methodologies owned or licensed by, or developed on behalf of, Inscale or any of its partners or suppliers (collectively, the “Inscale Property“). Subject to the limited rights expressly granted hereunder, Inscale and its licensors reserve and retain all right, title and interest in and to the Services and the Inscale Property, respectively, including all patents and applications therefor, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights (collectively, “Intellectual Property Rights”) therein. No Inscale Property shall be deemed to be Work Product. Inscale may modify or improve any Inscale Property at any time and such Inscale Property, and Inscale’s rights (including all Intellectual Property Rights) will include all enhancements, modifications, adaptations and/or derivative works therein and thereto (whether made by Inscale, Customer, a third-party or jointly). Except as expressly set forth herein, Customer is not granted any right, title or interest in or to any Inscale Property or any other equipment, supplies or materials owned, leased or licensed by or to Inscale, whether related to the performance of the Services, use or operation of the Deliverables or otherwise. All Inscale Property is deemed to be Inscale Confidential Information.

4.2.              Inscale Ownership of Work Product.

Inscale shall own and retain all right, title, and interest (including all Intellectual Property Rights), in and to all Work Product as well as all recommendations, ideas, techniques, know-how, designs, programs, development tools, processes, integrations, enhancements, and other technical information and any modifications or adaptations to, and/or derivative works from, the foregoing, whether developed by Inscale in the course of performing or providing any Services or co-developed by the Parties under any SOW(s). No Work Product shall be deemed a “work made for hire”. If any Work Product is delivered to Customer in connection with providing the Services (including any Work Product included as a Deliverable or portion thereof), Inscale hereby grants to Customer a non-exclusive, worldwide (subject to export Laws), royalty-free, fully paid-up, limited right to access and use the Work Product only on the terms and for the same period of time as Customer’s authorized use of the Inscale Subscription Services in accordance with the MSA. Such rights shall not be sublicensable, assignable, or transferable, except in connection with Customer’s assignment of (a) these Services Terms and all SOWs hereunder; and (b) the MSA (including all Schedules and Order Forms, as applicable, thereunder) pursuant to Section 11.6 below.

4.3.              Inscale Subscription Services.

The Services provided under this Services Agreement are in support of Customer’s use of the Inscale Subscription Services and/or technology related to such Inscale Subscription Services purchased under the  MSA. The MSA shall govern Customer’s use of the Inscale Subscription Services and any other services provided therein. Neither the terms of these Services Terms nor any SOW hereunder grants Customer any license or rights to use the Inscale Subscription Services or any Inscale proprietary software platform or other Inscale services, and any such rights shall be governed by the MSA entered into by Customer and Inscale.

4.4.              Residuals.

Nothing in this Services Agreement will: (a) prohibit or limit Inscale’s use of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience that were used, developed and/or gained in connection with Inscale’s provision of any Services under these Services Terms or any SOW; or (b) preclude Inscale from marketing, developing or using for any other purpose, any services or products for the benefit of Inscale or any other party. Inscale will continue to be free to use and exploit the Services and any Work Product to undertake the same or similar services for, and provide the same or similar products to, other customers and entities.

5.       Confidentiality.

5.1.              Confidential Information; Exceptions.

Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Inscale Confidential Information includes the Inscale Property and Work Product; Customer Confidential Information includes the (as defined below); and Confidential Information of each Party includes the terms and conditions of all SOWs (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed or made accessible by such Party. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without access to or reliance on the Disclosing Party’s Confidential Information.

5.2.              Protection.

The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Services Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, advisors, contractors and third parties (collectively, “Representatives”) who need access for purposes consistent with this Services Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each Party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other Party’s Confidential Information. Each Party may confidentially disclose the terms of this Services Agreement to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Inscale may disclose the terms of these Services Terms and any applicable SOW to a subcontractor or third party software provider to the extent necessary to perform Inscale’s obligations to Customer under this Services Agreement and/or any SOW, under terms of confidentiality materially as protective as those set forth herein.

5.3.              Compelled Disclosure; Retention.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Law to do so, provided the Receiving Party, to the extent legally permissible, gives the Disclosing Party prior written notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measure. If the Receiving Party is compelled by Law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Notwithstanding anything to the contrary contained herein, the Receiving Party (a) will be entitled to retain copies of Confidential Information for internal record keeping purposes and compliance with Laws and industry standards or for the purposes of defending or maintaining litigation; and (b) will not be obligated to erase Confidential Information that is contained in its archived data storage.

5.4.              Internal Record Keeping.

Notwithstanding anything to the contrary contained in this Services Agreement the Receiving Party will (a) be entitled to retain copies of the Disclosing Party’s Confidential Information for internal record keeping purposes and compliance with applicable regulations and industry standards or for the purposes of defending or maintaining litigation; and (b) not be obligated to erase Confidential Information that is contained in its archived data storage.

6.       Representations, Warranties, Exclusive Remedies and Disclaimers.

6.1.              Service Warranty.

Inscale warrants that the Services shall be performed by qualified personnel in a professional manner, consistent with industry standards. Customer’s sole and exclusive remedy for breach of this warranty will be for Inscale to promptly correct the defective Services at no cost or expense to Customer, which remedy shall apply and be available so long as Customer notifies Inscale in writing of any such breach within thirty (30) days of when such Services were provided by Inscale. Inscale does not otherwise warrant, expressly or implicitly, the results, performance, or quality of the Services or any Work Product provided under this Services Agreement or any SOW and Inscale has no obligation to provide any updates or upgrades for any Work Product.

6.2.              Cooperation.

Customer acknowledges that Inscale is relying upon information (including, data, records, specifications, descriptions, and documentation) provided by Customer. As a result, the accuracy and results of the Services and provision of any Work Product are dependent upon the timeliness, accuracy, and completeness of the information furnished to Inscale by Customer and Customer’s employees, agents, and contractors. Inscale’s obligations to provide the Services are expressly conditioned upon Customer’s cooperation and timely: (a) performance of tasks, responsibilities, and reviews under the applicable SOW (including any project plans developed thereunder); (b) provision of approvals and information (including data, records, specifications, descriptions, and documentation) under the SOW; and (c) access to Customer’s personnel, resources, facilities, and systems reasonably required for Inscale to perform the Services as well as Customer meeting any responsibilities set forth in this Services Agreement (collectively, “Customer Responsibilities”). Any delays due to Customer’s failure to satisfy or comply with the Customer Responsibilities may result in delays in the provision of the Services (including the Work Product) and additional Fees. Customer shall be responsible for the content of all material, information, data, records, specifications, descriptions, and/or documentation provided by Customer to Inscale (collectively, the “Customer Data”). Customer shall not provide to Inscale any material, information, data, records, specifications, descriptions, and/or documentation that infringes, misappropriates, or violates the Intellectual Property Rights or privacy rights of any third party or is otherwise unlawful.

6.3.              DISCLAIMERS.

EXCEPT FOR ANY WARRANTIES EXPRESSLY CONTAINED IN THIS services AGREEMENT, ALL SERVICES AND WORK PRODUCT PROVIDED BY INSCALE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS.  to the maximum extent permitted by law, INSCALE SPECIFICALLY DISCLAIMS ANY AND ALL OTHER warranties, whether expressed, implied, STATUTORY, OR otherwise AND specifically disclaims all implied warranties including, without limitation, the conditions AND/or warranties of merchantability, fitness for a PARTICULAR purpose, and NON-INFRINGEMENT. Inscale DOES NOT WARRANT THAT THE SERVICES, WORK PRODUCT, AND/OR any DELIVERABLE WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF ANY SERVICES, WORK PRODUCT, AND/OR DELIVERABLE. Inscale SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS. All of Inscale’s warranties are solely to and for the benefit of customer and for no other entity or third party.

7.       Mutual Indemnification.

7.1.              Indemnification by Inscale.

Inscale shall defend and hold Customer, its officers, directors, employees and contractors harmless from and against any third party claims, demands, suits, or proceedings (“Claims”) against Customer arising out of or relating to (A) personal injury (including death) to any persons or damage to any tangible personal property (excluding any Customer Data) arising out of any negligent act, error, or omission of Inscale and/or any Inscale employee, agent, or contractor; or (B) any Work Product infringing a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer: (i) promptly gives written notice of the Claim to Inscale; (ii) gives Inscale sole control of the defense and settlement of the Claim (provided that Inscale may not settle any Claim or enter into any order or stipulated judgment that purports to bind Customer unless it unconditionally releases Customer of all liability); and (iii) provides to Inscale, at Inscale’s cost, all reasonable assistance. If (a) Customer is enjoined from using the Work Product; or (b) the Work Product becomes, or Inscale believes the Work Product will likely become, the subject of an infringement Claim, Inscale shall have the right, in its sole discretion, to (i) obtain for Customer the right to continue use of the affected Work Product; or (ii) replace or modify the affected Work Product so that it is no longer infringing. If, in Inscale’s sole reasonable discretion, neither of the foregoing options are reasonably available to or commercially feasible for Inscale, Inscale will request that Customer return and no longer use the affected Work Product and, upon Customer’s compliance with such request, Inscale’s sole liability will be to refund the Fees paid by Customer for the affected Services and/or Work Product. Inscale’s foregoing indemnification obligation shall not apply to any Claim based on or caused by: (v) any design specifications, requirements, documentation, materials, instructions, and/or directions prepared by Customer and/or provided to Inscale under these Services Terms or any SOW; (w) any Work Product or Services being modified by any party other than Inscale, but solely to the extent the alleged infringement is caused by such modification; (x) any Work Product or Services being combined with other non-Inscale products, services, and/or processes not authorized by Inscale in writing, but solely to the extent the alleged infringement is caused by such combination; (y) any unauthorized use of any of any Work Product or Services; (z) any third party deliverables or components not provided by Inscale that are contained within any Work Product or Services; or (f) Inscale’s use of any Customer Data in accordance with this Services Agreement. THIS SECTION 7.1 SETS FORTH Inscale’s SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

7.2.              Indemnification by Customer.

Customer shall defend and hold Inscale, its officers, directors, employees and contractors harmless from and against any and all Claims against Inscale alleging that any Customer Data infringes the rights of, or has caused harm to, a third party or violates any Law, and shall pay all costs and damages finally awarded against Inscale by a court of competent jurisdiction as a result of any such Claim; provided, however, that Inscale: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim or enter into any order or stipulated judgment that purports to bind Inscale unless it unconditionally releases Inscale of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

8.       Limitation of Liability.

8.1.              Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS; (B) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS SERVICES AGREEMENT, IN NO EVENT SHALL (I) EITHER PARTY OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, OR FOR ANY LOSS OF BUSINESS, REVENUE, ANTICIPATED SAVINGS, PROFITS, USE, AND/OR LOSS OR CORRUPTION OF ANY DATA AND/OR COST OF DATA RECONSTRUCTION OR PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS, SERVICES, INVENTORY OR EQUIPMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY CLAIM ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICES AGREEMENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (II) EITHER PARTY’S ENTIRE AND MAXIMUM LIABILITY FOR ALL CLAIMS IN ANY MANNER RELATED TO THESE SERVICES TERMS AND/OR THE APPLICABLE SOW, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO INSCALE BY CUSTOMER UNDER THE SOW WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE FOR ALL CLAIMS IN ANY MATTER RELATED TO THIS SERVICES AGREEMENT AND IS NOT PER INCIDENT.

8.2.              Commencement of Actions; Mitigation of Damages.

No Party may commence any action under these Services Terms or any SOW more than one (1) year after the occurrence of the breach or event giving rise to the claim for damages and/or indemnification. The claiming Party shall use commercially reasonable efforts to mitigate and avoid any damages.

9.       Term; Termination.

9.1.              SOWs.

Unless otherwise provided in a SOW, the term of each SOW shall expire on the earlier of (a) the date of expiration of such SOW or cessation of such Services, as specified therein; or (b) Inscale’s completion of the Services described therein (the “Term”).

9.2.              Applicability of these Services Terms.

The term of these Services Terms commences as of the date these Services Terms are accepted by Customer in accordance with the terms herein and shall remain in effect and apply to each SOW executed by the Parties until all SOWs have expired or been terminated hereunder.

 

9.3.              Termination.

(a)     Either Party may terminate a SOW or, at the election of the terminating Party, this Services Agreement (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event this Services Agreement is terminated, these Services Terms and all SOWs are simultaneously terminated. Notwithstanding any terms to the contrary in this Services Agreement, if any amounts owed by Customer (except for any Disputed Fees then in dispute under Section 3.6) are not fully-paid when due in accordance with Section 3, Customer shall be in material breach of this Services Agreement and, in addition to its other rights and remedies at law or in equity, Inscale may terminate this Services Agreement and cease providing all Services, effective immediately upon delivery of written notice to Customer.

(b)     If Customer terminates this Services Agreement or any SOW prior to the expiration of the applicable SOW Term for Inscale’s uncured breach, Customer shall be entitled to a refund of all pre-paid Fees for the Services paid for but not provided by Inscale beyond the effective date of termination. If, prior to the expiration of the applicable SOW Term, (i) Customer terminates this Services Agreement or any SOW before the completion of all Services purchased and such termination is not due to Inscale’s uncured breach; or (ii) Inscale terminates this Services Agreement or any SOW due to Customer’s uncured breach (collectively, a “Customer Early Termination”) and Customer has not already paid in advance the full amount of all Fees due under each SOW for the Services purchased by Customer, Customer shall pay Inscale an early termination charge equal to all Fees, including all applicable Taxes, set forth in each SOW which would otherwise be due through the end of the entire Term of such SOW (the “Early Termination Fee”). The Parties agree that the precise damages resulting from a Customer Early Termination are difficult to ascertain and the Early Termination Fee is a reasonable estimate of anticipated actual damages and not a penalty. Customer agrees and acknowledges that the Early Termination Fee shall apply even if Customer terminates this Services Agreement or any SOW prior to Inscale commencing performance of any Services under this Services Agreement. The Early Termination Fee shall be due and payable within ten (10) days of the effective date of termination and any prepaid Fees will be applied towards the amount of the Early Termination Fee.

10.    Modifications and Amendments to Services Terms.

10.1.           Modifications and Amendments.

Inscale may, at any time and in its sole discretion, amend these Services Terms (posted at www.avsight.net/legal) if any such amendment(s) does not adversely and materially affect the level or quality of Services provided or to be provided by Inscale to Customer or change the rates quoted in any SOW. The revised Services Terms will become effective as to Customer on the earlier of (a) the first day after Customer and Inscale sign a new SOW that incorporates the revised version of the Services Terms by reference; or (b) thirty (30) days following Inscale’s written notice to Customer that a revised version of the Services Terms has been posted at www.avsight.net/legal.

Customer’s Rights.

If Customer’s compliance with the revised or amended version of the Services Terms would materially or adversely affect Customer’s use of the Services or any Work Product provided under a SOW and Customer gives written notice of its objection to the revised Services Terms no later than ten (10) business days following the date that the revised Services Terms would otherwise have become effective as to Customer, Inscale will not enforce the revision(s) to such Services Terms as to Customer until thirty (30) days following the date the revision(s) would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version of the Services Terms. During the thirty (30) day period, Customer may elect to terminate the SOW on these grounds by giving written notice to Inscale, which must be received by Inscale during such thirty (30) day period or such termination right shall be deemed to be waived by Customer. Inscale will not charge Customer an early termination fee for a termination on these grounds. If Customer does not elect to terminate the SOW during the thirty (30) day period, then the revised version of the Services Terms will become effective as to Customer and apply to the SOW (and all other SOWs) as of the end of the thirty (30) day period. If Customer elects to terminate the SOW in accordance with the terms of this Section 10.2, Inscale, in its sole discretion, may elect to waive application of the revised Services Terms as to Customer and continue to apply, for the remainder of the term of the SOW, the version of the Services Terms that was in effect prior to the date that the revised version of the Services Terms was posted at www.avsight.net/legal.

11.    General Provisions.

11.1.           Export Compliance.

The Services and other technology Inscale makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the Services in any U.S. embargoed country or in violation of any U.S. export law or regulation.

 

11.2.           Employee Solicitation.

While this Services Agreement is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor or consultant) any Inscale employee or subcontractor who was involved in providing any Services. An employee’s or subcontractor’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this Services Agreement.

11.3.           Survival.

All provisions survive termination or expiration of this Services Agreement except those requiring performance only during the term of this Services Agreement and/or a SOW, as applicable.

11.4.           No Third Party Beneficiaries.

This Services Agreement does not create any right enforceable by any person or entity that is not a party hereto.

11.5.           Entire Agreement; Order of Precedence.

This Services Agreement along with all SOWs executed by the Parties, is the entire agreement between Customer and Inscale regarding the Services and supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials and representations concerning its subject matter and the Services and there are no representations, understandings, or agreements that are not fully expressed. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Services Agreement or any SOW will be effective unless set forth in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in any Customer purchase order or in any of Customer’s other order documentation (excluding any SOW) is void. Headings contained in this Services Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this Services Agreement. In the event of any conflict or inconsistency between the following documents, the following order of precedence shall be: (a) these Services Terms; and (b) the applicable SOW (unless and to the extent expressly stated therein that a specified term therein shall take priority over an analogous or conflicting term in these Services Terms).

11.6.           Assignment.

Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Services Agreement in its entirety (together with all SOWs), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of this Services Agreement (including all SOWs) and, in the case of an assignment by Customer, all past due Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) are paid in full. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Services Agreement upon written notice. In the event of such a termination, Inscale will refund to Customer any prepaid Fees for the Services allocable to the remainder of the Term for the period after the effective date of such termination. Subject to the foregoing, this Services Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

11.7.           Relationship of the Parties.

The Parties are independent contractors. This Services Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third party beneficiaries under this Services Agreement.

 

11.8.           Force Majeure.

Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such Party’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, epidemic or pandemic, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees or contractors), service disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks.

11.9.           Waiver.

No failure or delay by either Party in exercising or enforcing any right, remedy, or obligation under this Services Agreement or SOW will constitute a waiver of that right, remedy, or obligation or any other right. Any waiver of any right, remedy, or obligation under this Services Agreement or any SOW must be in writing and signed by each Party.  A waiver on one occasion shall not be construed as a waiver of any right, remedy, or obligation on any future occasion. Except as otherwise expressly stated in this Services Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

11.10.       Governing Law; Venue.

This Services Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Services Agreement (including any SOW), the relationship of the Parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the Parties shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to conflicts of laws principles. The Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts in Delaware, USA. The Parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Services Agreement or any SOW.

11.11.       Notice.

Unless otherwise provided in this Services Agreement, all notices (except for routine business communications, e.g., scheduling of meetings or calls; requests for information; status reports, etc.) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Inscale shall be addressed to the Chief
Executive Officer, with a copy to the Vice President of Finance,   Notices sent to Inscale must be sent to its principal place of business identified below and sent to the attention of Chief Executive Officer at Inscale Technologies, LLC, 1544 Blowing Rock Road, Suite # 3716, Boone, NC 28607 (with a copy sent to Vice President of Finance at the same address). Notices to Customer may be sent  to the contact information for Customer provided in the applicable SOW.

11.12.       Severability.

If any provision of Services Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision will be deemed null and void, and the remaining provisions of this Services Agreement will remain in effect.

11.13.       Subcontractors.

Inscale may use the services of subcontractors for the performance or provision of any Services or Work Product under any SOW, provided that Inscale remains responsible for the (a) compliance by any such subcontractor with the terms of this Services Agreement; and (b) overall performance of the Services.

MASTER SUBSCRIPTION AGREEMENT

 

THIS MASTER SUBSCRIPTION AGREEMENT (“MSA”) GOVERNS THE SERVICES (AS DEFINED BELOW) TO BE PROVIDED BY INSCALE TECHNOLOGIES, LLC (“INSCALE”), AND/OR ITS SUPPLIERS, SERVICE PROVIDERS, AND/OR LICENSORS (COLLECTIVELY REFERRED TO AS “SUPPLIERS”) TO COMPANY OR ENTITY (“CUSTOMER”) THAT EXECUTES AN ORDER FORM (AS DEFINED BELOW). BY EXECUTING AN ORDER FORM, CUSTOMER IS ACCEPTING AND AGREEING TO THIS MSA AND THE TERMS OF SUCH ORDER FORM WHICH, UPON EXECUTION BY CUSTOMER, BECOMES PART OF AND SUBJECT TO THIS MSA. EACH ORDER FORM EXECUTED BY CUSTOMER SHALL BE EFFECTIVE AS OF THE EFFECTIVE DATE SPECIFIED THEREIN OR, IF NO EFFECTIVE DATE IS SPECIFIED, THE DATE CUSTOMER EXECUTES THE ORDER FORM. INSCALE AND CUSTOMER MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND, COLLECTIVELY, AS THE “PARTIES”.

 

Customer and Inscale (each may be referred to individually as a “Party” and, jointly, as the “Parties”) hereby agree as follows:

 

1.SCOPE

 

Terms and Conditions. The terms and conditions of this MSA apply to the software-as-a-service services provided by Inscale (the “Services”) as set forth and described in an order form or other ordering document issued by Inscale (including any online forms) that specify the Services to be provided hereunder and the applicable fees (each an “Order Form”). Services are made available utilizing the Saleforce.com (“SFDC”) online hosting platform and related services (“SFDC Services”), but the Services terms and conditions set forth in this MSA are specific to Inscale’s Services and exclude non-Inscale applications and SFDC Services, unless otherwise stated herein.

 

2.SERVICES

 

2.1 SFDC Services. This MSA is between Inscale and Customer. Customer acknowledges that Services are hosted for Inscale by SFDC and are also integrated as part of and are interoperable with the SFDC Services. By agreeing to the terms of this MSA, Customer accepts and agrees to abide by the SFDC terms of use in the SFDC User Guide accessible via login at http://www.salesforce.com, as may be updated from time to time. However, to the extent SFDC and Customer have entered into a valid agreement for the SFDC Services, the terms of such agreement shall govern Customer’s use of and access to such SFDC Services in connection with Customer’s use of the Services. Separate licensing terms may also apply for Customer’s use of the SFDC Services as made available to Customer by SFDC. Notwithstanding any other provision of this MSA, Customer acknowledges and agrees that Inscale shall not be responsible or liable for any such SFDC Services or for the acts, errors, omissions, or negligence of SFDC or any of its Affiliates. For purposes of this MSA,  “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party, where “control” is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise.

 

2.2 Integration with Non-Inscale Applications. The Services may contain features designed to interoperate with non-Inscale applications. To use such features, Customer may be required to obtain access to such non-Inscale applications from their providers and comply with such providers’ applicable terms of use. If the provider of any such non-Inscale application ceases to make the non-Inscale application available for interoperation with the corresponding Inscale Services features on reasonable terms, Customer’s use of such Inscale Services features might cease without entitling Customer to any refund, credit, or other compensation. Customer acknowledges and agrees that Inscale shall not be responsible or liable for any such non-Inscale applications or for the acts, errors, omissions, or negligence of any provider of any non-Inscale application.

 

2.3 User Subscriptions. Inscale will make the Services available pursuant to the terms of this MSA and each Order Form during the applicable subscription term to each individual employee, consultant, contractor,  and/or agent who is authorized by Customer to access and/or use the Services during the applicable subscription term (each, a “User”) and subject to the usage restrictions, limits, and/or conditions set forth in this MSA as well as the applicable Order Form. If the Services will be made available to any Customer Affiliate pursuant to this MSA or any Order Form, then the term “Customer” shall also include any such Customer Affiliate. Customer shall be responsible for each of its, and its Affiliate’s, User’s use of the Services. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users as set forth in the applicable Order form; (ii) Customer shall have the right to add additional User subscriptions during the applicable subscription term; provided, however, that the fee for any additional User subscription shall be at Inscale’s current subscription rate in effect on the date that any such additional User is added (and might result in a rate increase for any such additional User subscriptions), prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added; and (iii) the additional User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing access or use of the Services. Notwithstanding anything to the contrary contained herein, Customer shall have the right to allow others to indirectly access the Services (including through integrations or APIs), provided, that all such access in the aggregate with respect to a particular security access level shall require a single integration User license.

 

2.4 Usage Limitations. Customer’s usage must comply with the Salesforce Master Subscription Agreement posted at https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/salesforce MSA.pdf in addition to this MSA. In the event of any conflict between these documents as to Salesforce’s responsibilities, rights, and liabilities, the terms of the Salesforce’s Master Subscription Agreement shall apply and prevail. Usage limitations imposed by SFDC may affect the use of Inscale’s application. The Services may be subject to other limitations imposed by SFDC (e.g., limits on disk storage space, on the number of calls Customer is permitted to make against the Inscale application programming interface, and, for Services that enable Customer to provide public websites, on the number of page views by visitors to those websites). Any such limitations are specified in the SFDC User Guide. The Services provide real-time information to enable Customer to monitor compliance with such limitations.

 

  1. ACCESS TO INSCALE SERVICES

 

3.1 Right to Use Inscale Services. Inscale grants Customer, subject to the terms and conditions of this MSA, a non-assignable, non-transferable (except as explicitly provided in this MSA), non-exclusive right to permit Customer’s Authorized Users to access and use the Inscale Services solely for Customer’s internal business purposes, subject to any specific usage restrictions set forth in the applicable Order.

 

3.2 Customer Support. Inscale will provide the Services in accordance with the Customer Support Policy attached hereto as Schedule 1 and incorporated herein. Customer’s purchase of the Services is neither contingent on the delivery of any future functionality or feature nor dependent on any oral or written public comment made by Inscale regarding future functionality and/or features.

 

3.3 Data Protection. Inscale will maintain administrative, physical, and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer Data, including measures designed to prevent unauthorized access, use, modification, or disclosure of Customer Data by Inscale personnel, except (i) as required to provide the Inscale Services and prevent or address service or technical problems, or (ii) as compelled by law. For purposes of this MSA, “Customer Data” means all electronic data or information submitted by Customer to be stored or processed in the Inscale software platform. After becoming aware of a security breach, Inscale will promptly (a) notify Customer of the security breach; (b) investigate the security breach, and (c) make commercially reasonable efforts to prevent a recurrence of the security breach. Inscale agrees to cooperate in Customer’s handling of the matter by: (i) providing reasonable assistance with Customer’s investigation, and (ii) making available to Customer relevant records, logs, files, data reporting, and other materials related to the security breach, if required to comply with an applicable data protection law.

 

  1. RESPONSIBILITIES WITH RESPECT TO THE INSCALE SERVICES

 

4.1 Services. Except as expressly provided herein, Customer agrees that it will not itself, and will not permit others to: (i) sub-license, sell, rent, lend, lease, or distribute the Services or any intellectual property rights in the Services or otherwise make the Services available to others other than to Customer and its authorized Users; (ii) modify the Services in any way not authorized by Inscale; (iii) use the Services in violation of any applicable law or for any purpose or in any manner not expressly permitted in this MSA or the applicable Order Form, including, without limitation, to reverse engineer, de-compile, disassemble, or create any derivative works of the Services; (iv) remove or obscure any proprietary notices or labels on the Services; or (v) infect the Services with viruses or any other computer code, files or programs that interrupt, destroy, or limit the functionality of the Services.

 

4.2 Customer Responsibilities Obligations; Grant Restrictions. (1) Customer shall not: (a) modify, copy, or create any derivative works based on the Services or frame or mirror any part or content of the Services, other than copying or framing for Customer own internal business purposes; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Users as permitted herein; (c) disassemble, reverse engineer, or decompile any portion of the Services, including any software utilized by Inscale in the provision of the Services, except to the extent required by applicable law; (d) access the Services if it (or any Affiliate) is a direct competitor of Inscale or in order to build any competitive or commercially available product or service or for purposes of monitoring the availability, performance, or functionality of the Services, or for any other benchmarking or competitive purposes; (e) copy any features, functions, integrations, interfaces or graphics of the Services; (f) use the Services in violation of any law, regulation, or outside the scope of the rights granted in this MSA; (g) in connection with the Services, upload, send, or store any material that (i) infringes or misappropriates any intellectual property right of Inscale, Inscale’s licensors or suppliers, or any third party, or is (ii) obscene, threatening, or otherwise unlawful or tortious or violates any law, regulation, or any party’s rights, including any privacy, publicity, import and export control, data protection, electronic communications, or anti-spamming laws or rights; (h) send or store any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs (“Malicious Code”) in or in connection with the Services; (i) interfere with or disrupt performance of the Services or the data contained therein; or (j) attempt to gain access to the Services or its related systems or networks in a manner not set forth in the Documentation related to such Services. Customer shall have sole responsibility for the collection, accuracy, quality, integrity, legality, reliability, appropriateness, legal protection, and use rights of all Customer Data. Access to the Services is password-controlled and Customer is responsible for, and will implement and use industry-standard measures to, (x) maintain the security of User passwords and instruct its Users as to the importance of maintaining the confidentiality of passwords and/or User identifications; (y) prevent unauthorized access to and/or use of the Services, and notify Inscale promptly in writing of any unauthorized access and/or use; and (z) use the Services only in accordance with the SFDC User Guide and applicable laws and government regulations. Customer will cause its Affiliates (and such Affiliates’ Users) to comply with the provisions of this MSA and shall be responsible and liable for the acts, errors, omissions and negligence of all Users and Affiliates relating to the access to and use of the Services. Customer further agrees to comply with the terms of service of any non-Inscale application, including, without limitation, to any software, applications, or services, with which Customer uses the Services.

 

(2)  Customer is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Services, and maintaining the security of its equipment and account access passwords. The Services are subject to per User data and file storage limits established by SFDC. Customer has the right to purchase additional data and file storage capacity. If Customer exceeds the applicable number and/or type of authorized Users and/or the Customer Data exceeds the data and/or file storage limits as set forth in the applicable Order Form, Customer will pay Inscale’s then-current fees for such overage up to that point. Thereafter, Inscale may either (a) to the extent applicable, require Customer to either bring its usage within the limits of such restrictions, or (b) increase Customer’s permitted number of authorized Users or data and/or file storage capacity, as applicable (subject to continued payment of such fees for such overage).

 

4.3 Collection of Customer Data. Customer agrees and acknowledges that the collection of Customer Data is the sole and exclusive responsibility of Customer. Customer agrees and acknowledges that Inscale is not responsible in any way for any intellectual property infringement or the violation of any third party’s rights or laws, including, without limitation, any infringement or misappropriation of copyright, trademark, trade secret, or any other intellectual property right of any person or entity, arising from or relating to any Customer Data. In relation to all Personal Data comprised within the Customer Data, Customer warrants that such personal data shall have been obtained and supplied to Inscale in compliance with applicable laws, including, without limitation, any applicable data protection and/or privacy laws and Customer warrants that it has obtained all necessary consents and approvals from users that are necessary to permit Inscale to provide the Services to Customer and any of its Affiliates under this MSA. Customer further agrees to not use the Inscale Services to store, process, or transmit any Personal Data and Inscale disclaims responsibility for any Personal Data.  “Personal Data” means any non-public information and/or data that can be used, alone or in combination with other data, to identify any individual person. Personal Data includes, without limitation, a person’s  home address, date of birth, social security number, home or personal telephone numbers, credit card or debit card information (with or without any required security code), driver’s license number or unique number contained in any other government-issued identification document, bank account number or any password that would permit access to any individual’s financial account, mother’s maiden name and any other information used to authenticate identity, biometric records, Personal Health Information (as that term is defined and/or used in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act) or any other medical information, education information, any passport and/or visa number, passwords, financial information, and/or any employment information.

 

  1. PROPRIETARY RIGHTS

 

5.1 Inscale Services. This is an agreement for use of Inscale’s Services and not an agreement for the sale or license of any software including any third party software. Subject to the limited rights expressly granted to Customer under this MSA, Inscale reserves all right, title and interest in and to the Services and all modifications and improvements thereto, plus all related intellectual property rights. Except as expressly stated in this MSA, this MSA does not grant Customer any rights to, or in, any patent, copyright, database right, trade secret, trade name, trademark (whether registered or unregistered), or any other rights or licenses in respect of the Services.

 

5.2 Customer Data. Customer reserves all right, title and interest in and to the Customer Data and, subject to the limited rights granted by Customer under this MSA, Inscale acquires no right, title or interest from Customer under this MSA in or to any Customer Data or any other intellectual property rights therein. Customer grants Inscale a limited license to access, copy, transmit, display, and modify such Customer Data, solely as necessary for Inscale to provide Services to Customer under this MSA and any Order Form.

 

5.3 Suggestions. Customer grants to Inscale a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, and/or any other feedback provided by Customer or any User relating to the Services.

 

5.4 Customer Applications and Code. If Customer, a third party acting on Customer’s behalf, or a User creates applications or program code using the Services, Customer authorizes Inscale to host, copy, transmit, display, and/or adapt such applications and program code, solely as necessary for Inscale to provide the Services in accordance with this MSA. Subject to the above, Inscale acquires no right, title or interest from Customer or Customer licensors under this MSA in or to such applications or program code, including any intellectual property rights therein.

 

6.FEES AND BILLING

 

6.1 Fees. (i) User subscription fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order (provided, that Customer may decrease the number of User subscriptions for the next subscription term by providing written notice to Inscale at least sixty (60) days prior to the commencement of such subscription term).

 

6.2 Payment. All fees for the professional services and Services ordered by Customer shall be pursuant to an executed Order Form and all fees are quoted and payable in United States dollars. All fees are based on the Services ordered by Customer in any Order Form and not actual usage. Except as otherwise set forth in this MSA, all payment obligations are non-cancelable, fees paid are non-refundable, and quantities ordered cannot be decreased during the relevant subscription term.

 

6.3 Invoicing. (a) Customer will provide Inscale with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Inscale. Upon Customer providing credit card information, Customer authorizes Inscale to charge such credit card for all professional services and Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) and agrees to pay a three percent (3%) surcharge for payment by  credit card. Such charges shall be paid in advance, either annually or in accordance with a different billing frequency as stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Inscale will invoice Customer in advance and otherwise in accordance with the relevant Order Form. If Customer has five (5) or less Users, payment by credit card or ACH is required. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Inscale and notifying Inscale of any changes to such information. (b) If any charges are not received from Customer by the due date, at Inscale’s discretion, (i) such charges may accrue interest at the lesser of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid, and/or (ii) Inscale may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the MSA.

 

6.4 Suspension of Service and Acceleration. If any amount owing by Customer under this MSA or any Order Form is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Inscale to charge to Customer’s credit card), Inscale may, without limiting its other rights and remedies, accelerate Customer unpaid fee obligations under the MSA and any Order Form so that all such payment obligations become immediately due and payable and/or suspend the Services to Customer until all such amounts are paid in full. Inscale will give Customer at least five (5) days’ prior written notice (which written notice may be by email) that Customer’s account is overdue, before suspending services to Customer.

 

6.5 Payment Disputes. Any dispute involving any invoiced fees (a “Billing Dispute”) must be in writing and submitted in good faith to the Inscale within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed fees as well as the reasonable and good faith basis for why a credit or refund is being requested (a “Billing Dispute Notice”). Customer shall cooperate with the Inscale to promptly address and attempt to resolve any Billing Dispute submitted by Customer. Customer acknowledges and agrees that, if Customer does not submit a Billing Dispute Notice in compliance with this Section, Customer waives all rights to dispute such invoice and all fees set forth in such invoice will be considered correct and binding on Customer. Notwithstanding any Billing Dispute commenced in accordance with this Section, Customer shall remain obligated to pay in a timely manner all undisputed Fees within thirty (30) days of the invoice date or as otherwise applicable.

 

6.6 Taxes. All fees do not include any taxes. Customer is responsible for paying all taxes associated with the purchases of any Services. If Inscale has the obligation to pay or collect any taxes for which Customer is responsible, then the appropriate amount shall be included in the invoice and Customer agrees to pay such amount in a timely manner. For clarity, Inscale is solely responsible for taxes assessable against it based on its income, property, and employees.

 

  1. WARRANTIES AND DISCLAIMERS

 

7.1 Each Party represents and warrants that it has the authority to enter into this MSA and any Order Form.

 

7.2 Inscale Warranties. Inscale represents and warrants that: (i) the Services shall perform materially in accordance with help.saleforce.com and in accordance with the applicable Services descriptions and specifications; and (ii) the features and functionality of the Services will not be materially decreased during the subscription term.

 

7.3 Customer Warranties. Customer represents and warrants that:  (i) it will use commercially reasonable efforts to prevent the introduction of any Malicious Code into Customer’s systems and the Services; and (ii) it is authorized to provide Inscale access to, and store in the Services, any and all Customer Data.

 

7.4 Ultrahazardous Activities. Customer acknowledges and agrees that the Services and any third party software are not designed, developed, or intended for use in any environment in which the failure of the Services and/or third party software could lead to death, personal injury, and/or physical or environmental damage, which uses and environments may include, without limitation, the design or operation of nuclear facilities, navigation or communication systems, air traffic control, direct life support machines, or weapons systems or the on-line control of equipment in any hazardous environment requiring fail-safe performance. Customer represents and warrants that Customer will not install or use the Services and/or any third party software for any such purposes.

 

7.5 Exclusive Remedies. As Customer’s sole and exclusive remedy and Inscale’s sole and exclusive liability for breach of any warranty set forth in this Section, (i) Inscale shall correct the material deficiency of the affected Services at no additional charge to Customer; and (ii) if Inscale is unable to correct the material deficiency of the affected Services after its good faith efforts, Inscale shall, in its discretion, either refund to Customer a pro-rata portion of the amounts of any prepaid fees attributable to the materially deficient Services from the date Inscale received such written notice from Customer or extend the subscription term then in effect for a period of time equal to the time period that the materially deficient Services were provided by Inscale. To receive any warranty remedies, Customer must promptly report any deficiency in writing to Inscale, but no later than ten (10) business days after the deficiency has first occurred.

 

7.6 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, 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, TITLE (INCLUDING NON-INFRINGEMENT), AND ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT FOR THE ACT, ERROR, NEGLIGENCE, OR OMISSION OF A USER, EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY. INSCALE DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED AND INSCALE SHALL NOT BE RESPONSIBLE FOR ANY LIMITATIONS, DISRUPTIONS, DELAYS, AND/OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND/OR ANY ELECTRONIC COMMUNICATION. Notwithstanding anything herein to the contrary, Inscale and its Suppliers make no warranties with respect to any portion of any deliverable or any third party software, deliverable, products, and/or services.

 

7.7 Non-Inscale Services. From time to time Inscale may invite Customer to try, at no charge, products or services that are not generally available to Inscale customers (“Non-Inscale Services”). Customer may accept or decline any such trial in Customer’s sole discretion. Any Non-Inscale Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-Inscale Services are provided solely for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-INSCALE SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY. Inscale may discontinue Non-Inscale Services at any time in its sole discretion and may never make them generally or commercially available.

 

8.INDEMNIFICATION

 

8.1 Indemnification by Inscale. Inscale shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder and in accordance with this MSA infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a settlement of, a Claim Against Customer; provided that Customer: (a) promptly gives Inscale written notice of the Claim Against Customer; (b) gives Inscale sole control of the defense and settlement of the Claim Against Customer (provided that Inscale may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provides to Inscale all reasonable assistance, at Inscale’s expense. In the event of a Claim Against Customer, or if Inscale reasonably believes the Services may infringe or misappropriate any third party’s intellectual property rights, Inscale may, in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate any third party’s intellectual property, without breaching Inscale warranties under “Inscale Warranties” above, (ii) obtain a license for Customer’s continued use of the Services in accordance with this MSA, or (iii) upon prior written notice, terminate Customer’s subscriptions to and use of the Services and, upon such termination, refund to Customer any prepaid fees covering the remainder of the term of the User subscriptions for the Services after the effective date of termination, except that SFDC fees are non-refundable. Inscale shall not be required to indemnify Customer in the event of: (1) modification of any portion of the Services in any manner by Customer, its employee, agent, contractor, or any User or as a result of any prohibited activity as set forth herein; (2) use of the Services in violation of this MSA, in any unauthorized manner, or in any manner inconsistent with the applicable documentation; (3) use of any Services in combination with any other product, service, and/or software not provided by Inscale or approved, and/or specified by Inscale in writing prior to such combined use; or (4) any infringement or misappropriation of any intellectual property right arising from or related to the access to and/or use of any non-Inscale-provided third party software.

 

8.2 Indemnification by Customer. Customer shall defend Inscale against any claim, demand, suit or proceeding made or brought against Inscale by a third party alleging that any Customer Data, or Customer’s use of the Services in breach of this MSA, infringes or misappropriates the intellectual property rights of a third party or violates any applicable law (a “Claim Against Inscale”), and shall indemnify Inscale for any damages, attorney fees and costs finally awarded against Inscale as a result of, or for any amounts paid by Inscale under a settlement of, a Claim Against Inscale; provided that Inscale: (a) promptly give Customer written notice of the Claim Against Inscale; (b) give Customer sole control of the defense and settlement of the Claim Against Inscale (provided that Customer may not settle any Claim Against Inscale unless the settlement unconditionally releases Inscale of all liability); and (c) provide to Customer all reasonable assistance, at Customer expense.

 

8.3 Exclusive Remedy. This Section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of indemnification claim described in this Section.

 

  1. LIMITATION OF LIABILITY

 

9.1 Limitation of Liability. EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA AND/OR ANY ORDER FORM (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE INCIDENT OR EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS MSA OR ANY ORDER FORM.

 

9.2 Exclusion of Consequential and Related Damages. EXCEPT AS SET FORTH IN THIS SECTION, 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. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THIS SECTION ON LIMITATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS OR TO CUSTOMER’S PAYMENT OBLIGATIONS.

 

 

 

10.CONFIDENTIALITY

 

10.1 Confidential Information. “Confidential Information” means all non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether verbally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Customer Confidential Information includes Customer Data; Inscale Confidential Information includes the Services (including all documentation), information contained in any design documentation relating to any Inscale software programs including any source code, development level documentation, all Inscale development tools (except for publicly available tools), data files, databases, marketing plans, supplier and customer information; and Confidential Information of each Party includes the terms and conditions of any Order Form (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed or made accessible by such Party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (iii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without access to or reliance on the Disclosing Party’s information.

 

10.2 Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this MSA or any Order Form; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and any of its Affiliate’s employees, officers, advisors, contractors, and third parties (collectively, “Representatives”) who need access for purposes consistent with this MSA and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Disclosing Party’s Confidential Information than those set forth in this MSA. Each Party shall be and remain fully liable and responsible for any of its Representative’s unauthorized disclosure, access to, and/or use of the other Party’s Confidential Information. Each Party may confidentially disclose the terms of this MSA (including any Order Form) to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Inscale may disclose the terms of this MSA and any applicable Order Form to a subcontractor to the extent necessary to perform or satisfy Inscale’s obligations to Customer under this MSA and/or any Order Form, under terms of confidentiality materially as protective as set forth in this MSA.

 

10.3 Misuse of Confidential Information. Customer acknowledges and agrees that the Services contain proprietary information and trade secrets of Inscale and its Suppliers. Customer will not use any Confidential Information or know how that it gains through use or study of the Services to facilitate Customer’s or any third party’s development of any services or products that would compete with the Services provided by Inscale. Subject to Inscale’s confidentiality obligations, Inscale reserves the right to develop and market any technology, products, and/or services or pursue business opportunities that compete with and/or are similar to those of Customer.

 

10.4 Compelled Disclosure; Retention. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or regulation to do so, provided that, to the extent legally permissible, the Receiving Party gives the Disclosing Party prior written notice of the compelled disclosure and, at the Disclosing Party’s cost, reasonable assistance if the Disclosing Party wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measure. Notwithstanding anything to the contrary contained herein, (i) the Receiving Party may retain such copies of the Disclosing Party’s Confidential Information as are reasonably necessary: (1) to comply with any laws or regulations applicable to Receiving Party or to comply with the Receiving Party’s document retention policies; and/or (2) for the purposes of defending or maintaining litigation; and (ii) in no event shall this MSA require the alteration, modification, deletion, or destruction of back-up tapes, archived data storage, or other media made in the ordinary course of business provided that the terms and conditions of this MSA shall apply to the Receiving Party’s retention of any of Disclosing Party’s Confidential Information and survive the termination or expiration of this MSA for any reason.

 

10.5 Injunctive Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information may cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such actual or threatened disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief, without the necessity of proving actual harm or posting bond, in addition to whatever other remedies it might have at law or in equity.

 

10.6 Independent Development; Residuals. Nothing in the terms of this MSA shall be construed to limit Inscale’s or Customer’s right to independently develop or acquire products without the use of the other party’s Confidential Information.

 

  1. TERM AND TERMINATION

 

11.1 Term of this MSA. This MSA commences on the date Customer first executes an Order Form and continues until all User subscriptions granted in accordance with this MSA and all Order Forms have expired or been terminated. If Customer elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this MSA will terminate at the end of the free trial period.

 

11.2 Termination. This MSA may be terminated by Inscale immediately upon written notice in the event Customer fails to pay any invoice in accordance with Customer’s payment obligation as set forth in this MSA or any Order Form. A Party may terminate this MSA for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such material breach remains uncured at the expiration of such thirty (30) day time period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

 

11.3 Term of Purchased User Subscriptions. User subscriptions purchased by Customer commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the original term of the expiring subscription term or one year (whichever is longer), unless either Party gives the other written notice of non-renewal at least third (30) days before the expiration of the relevant subscription term then in effect. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Inscale has given Customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

 

11.4 Effect of Termination. Upon any termination for by Customer due to Inscale’s uncured material breach, Inscale shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination, except that subscription fees prepaid to SFDC are non-refundable. If, prior to the expiration of any subscription term then in effect for any Order Form, (i) Customer terminates this MSA or any Order Form and such termination is not due to Inscale’s uncured breach; or (ii) Inscale terminates this MSA or any Order Form due to Customer’s uncured breach (collectively, an “Early Termination”) and Customer has not already paid in advance the full amount of all fees due for the entire subscription term then in effect under the Order Form(s) being terminated, Customer shall promptly pay to Inscale an early termination charge equal to all fees, including all applicable taxes, set forth in each Order Form being terminated which would otherwise be due through the end of the entire subscription term then in effect under such Order Form(s) (the “Early Termination Fee”). The Parties agree that the precise damages resulting from an Early Termination are difficult to ascertain and the Early Termination Fee is a reasonable estimate of anticipated actual direct damages and not a penalty. Customer agrees and acknowledges that the Early Termination Fee shall apply even if Customer terminates this MSA and/or any Order Form prior to commencement of Customer’s access to or use of the Services. The Early Termination Fee shall be due and payable to Inscale within ten (10) business days of the effective date of termination and any applicable prepaid fees will be applied towards the amount of the Early Termination Fee to be paid by Customer.

 

11.5 Return of Customer Data. Upon written request by Customer made within thirty (30) days after the effective date of termination of a subscription term, Inscale will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. If Customer requires Inscale’s assistance, Customer may purchase professional services from Inscale at Inscale’s then-current billing rate pursuant to a written Order Form or Statement of Work entered into between the Parties. After the expiration of such 30-day period, Inscale shall have no obligation to maintain or provide access to any of Customer Data and shall thereafter, unless legally prohibited, have the right to delete all of Customer Data in Inscale systems or otherwise in Inscale’s possession or control.

 

11.6 Survival. All Sections of this MSA specified as surviving shall survive any expiration or termination of this MSA for any reason. Sections 1, 2, 4, 5, 6, 7.5, 7.6, and 8 through and including 12 shall survive the expiration or termination of this MSA for any reason.

 

  1. MISCELLANEOUS

 

12.1 Notices. Any notices or communications (except for routine business communications and maintenance windows) required or permitted to be given regarding this MSA shall be in English and in writing, and shall be sent via U.S. certified mail, return receipt requested, or, by prepaid overnight or courier service.Notices sent to Inscale must be sent to its principal place of business identified below and sent to the attention of “Chief Executive Officer” at Inscale Technologies, LLC, 1544 Blowing Rock Road, Suite # 3716, Boone, NC 28607. Notices to Customer may be sent  to the contact information for Customer provided in the applicable Order Form.

 

12.2 Independent Contractor. Inscale, in rendering performance under this MSA and any Order Form is acting solely as an independent contractor. In no way is either Party to be construed as the agent of the other Party in any respect, any other provisions of this MSA hereunder notwithstanding.

 

12.3 Entire Agreement; Amendments. This MSA together with all Order Forms and any exhibits constitutes the entire agreement between Customer and Inscale regarding Customer’s and its Users’ access to and use of Services and supersedes and merges all prior and contemporaneous, agreements (including, without limitation, any confidentiality or non-disclosure agreement entered into between the Parties), understandings, proposals, marketing materials, and representations, whether written or verbal, concerning its subject matter and the Services and there are no representations, understandings, or agreements that are not fully expressed in this MSA. Inscale reserves the right, with or without notice, to amend or modify this MSA by posting such amendment or modification on the Inscale website, and Customer agrees to be bound by any amendment or modification; provided, however, that Inscale shall not, without Customer’s written consent, amend this MSA in a manner that adversely and materially affects the level or quality of Services provided or to be provided by Inscale to Customer. Except as otherwise provided in this MSA, no provision of this MSA (including any Order Form) may be amended, modified, superseded, or terminated, or any term or condition waived, unless the Parties agree in writing, signed by a duly authorized representative of each Party. The Parties agree that any term or condition stated in any Customer purchase order or any other Customer ordering documentation is inapplicable and void. This MSA (including each Order Form) will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this MSA or any Order Form in construing or interpreting any of the provisions. Headings contained in this MSA are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this MSA. In the event of any conflict or inconsistency between or among the documents, the following order of precedence shall apply: (a) the applicable Order Form; (b) this MSA; and (c) the documentation.

 

12.4 Severability. If any provision of this MSA or its application to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this MSA and its application shall not be affected and shall be enforceable to the fullest extent permitted by law.

 

12.5 Waivers; Rights and Remedies. No failure or delay by either Party in exercising any right, remedy, or obligation under this MSA will constitute a waiver of that right, remedy, or obligation or any other right, remedy, or obligation. Any waiver of any right, remedy, or obligation under this MSA must be in writing and signed by a duly authorized representative of each Party. A waiver on one occasion shall not be construed as a waiver of any obligation, right, or remedy on any future occasion. Except as otherwise expressly stated in this MSA, the remedies provided herein are in addition to, and not exclusive of, any other rights and/or remedies of a Party at law or in equity.

 

12.6 Governing Law. This MSA shall be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to principles of conflict of laws that would require application of the laws of any other jurisdiction. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS MSA OR ANY ORDER FORM.

 

12.7 Successors and Assigns. This MSA shall inure to the benefit of and be binding upon the parties hereto, and, to the extent permitted by this MSA, their respective heirs, legal representatives, successors and assigns.

 

12.8 Assignment. Neither Party shall assign its rights or obligations under this MSA or any Order Form without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, either Party may assign this MSA in its entirety together with all Order Forms, without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of this MSA including all Order Forms and, in the case of an assignment by Customer, all past due fees are paid in full.

 

12.9 Force Majeure. Inscale shall not be responsible for any delay or failure to perform under this MSA or any Order Form when its delay or failure results from any circumstances beyond its reasonable control including, without limitation, acts of God, any government act or directive, epidemic or pandemic, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, service disruptions involving hardware, software or power systems not within Inscale’s possession or reasonable control, and denial of service attacks. A force majeure event does not include economic hardship.

 

12.10 Export and OFAC ComplianceThe Services and other technology which Inscale makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that neither it nor any of its employees is (a) a person or entity with whom U.S. entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order or other governmental action; or (b) named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

 

12.11 Employee SolicitationWhile this MSA and/or any Order Form is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor, or consultant) any Inscale employee or subcontractor who was involved in providing any of the Services. An employee’s or subcontractor’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this MSA.

 

 

 

 

SCHEDULE 1

INSCALE TECHNOLOGIES, LLC CUSTOMER SUPPORT POLICY

 

This Inscale Technologies, LLC  (“Inscale”, “us”, “our”, or “we”) Customer Support Policy (“Policy”) is incorporated into and governed by Inscale’s Master Subscription Agreement (“MSA”) found at www.avsight.net/legal. Any terms not defined in this Policy shall have the meaning ascribed to such terms in the MSA.

 

Overview

This Policy applies to Customer (also referred to as “you” or “your”) use of the Services as described below. Technical and customer service support is available during Inscale’s normal business hours Monday through Friday, excluding holidays observed by Inscale, via submission of a trouble ticket via the Inscale online support system. Trouble tickets can be submitted to the online support system on a 24/7/365 basis.

 

Customer Support

Customer support includes assistance related to your use of the Inscale software platform modules. This includes help with troubleshooting reported errors, bug fixes, basic usability assistance, access to our Knowledge Base and ticketing system,  upgrades, and any new Services features but excludes any configurations or training required to use any new features (NOTE: there are a few advanced, system-wide features that may not be included with upgrades, e.g., multi-company, multi-currency, accounting, e-commerce, integrations, etc.).

 

Customer support does not include any of the following:

  • Assisting with or changing your configuration of the Inscale software platform.
  • Training on usage of the Inscale software platform.
  • Providing detailed guidance related to configuration of the Inscale software platform.
  • Assistance with non-Inscale products, software, technologies, and/or services related to or integrating with the Inscale software platform.
  • Assistance with the configuration of hardware including computers, networks, printers, servers, etc.
  • Modifications to existing features requiring additional configurations or customizations
  • Addition of new features requiring configuration or setup
  • Workflows or automation
  • Additional alerts and notifications
  • Customizing existing pages or forms or adding new ones
  • Mass import and deletion of data

 

Customer Obligations

Customer will provide initial user support, which consists of (i) a direct response to any user with respect to inquiries concerning the performance, functionality, and/or operation (“how-to”) of the Inscale software platform; (ii) a direct response to users with respect to problems or issues with the Inscale software platform; (iii) diagnosis of problems or issues with using the Inscale software platform; and (iv) attempting to resolve any problems or issues with the Inscale software platform (“Level One Support”).  Only your Authorized Contacts are authorized to submit a trouble ticket to Inscale. In conjunction with submitting a trouble ticket to us, Customer is obligated to provide all information and access to your resources as we reasonably require in order to provide technical assistance, including access to your instance of SFDC if necessary, and prompt and responsive assistance from your personnel. We shall be excused from any non-performance of our obligations hereunder to the extent any such non-performance is attributable to your failure to perform and/or satisfy your obligations.

 

Authorized Contacts

We will provide technical assistance to your Authorized Contacts. “Authorized Contacts” are your designated personnel who will serve as your primary liaison with us for all support issues.  You can designate up to two (2) Authorized Contacts.  You may be charged an additional fee for Authorized Contacts in excess of two (2).

 

Your Authorized Contacts shall be responsible for (i) overseeing your support activity and all trouble tickets; (ii) developing and deploying troubleshooting processes within your organization; and (iii) resolving password reset, username, and lockout issues for your users.

 

You shall ensure that your Authorized Contacts:

  • have completed, at a minimum, the basic training on the use of the Inscale software platform; and
  • are knowledgeable about the applicable Inscale modules you are subscribing to in order to help resolve, and to assist us in analyzing and resolving, technical issues, and also have a basic understanding of any problem that is the subject of your trouble ticket as well as the ability to reproduce the problem in order to assist us in diagnosing and solving it.

 

Logging a Trouble Ticket

Users may log a trouble ticket as follows:

  1. For all Severity Level issues (as described below), Inscale uses the online ticketing system in the Inscale software platform.  After logging in, please provide the requested information and then click “Submit”.
  2. Note: for assistance with Inscale software platform password resets, usernames, and lockouts, users should contact their system administrator. For security reasons, Inscale does not provide contact information for system administrators.

Reproducing Errors

We must be able to reproduce errors with an unmodified version of the Inscale software platform in order to resolve them. You agree to cooperate and work closely with us to reproduce errors, including conducting diagnostic and/or troubleshooting activities as reasonably requested.

 

Severity Levels

Reproducible errors that cannot promptly be resolved will be escalated to higher support tiers for further investigation and analysis. Issues will be generally categorized and handled according to an assigned severity level, as follows:  

Severity Level Description
Level 1 – Critical Critical production issue affecting all users, including system unavailability or completely inoperative and data integrity issues with no workaround available.

 

Level 2 – Urgent Major functionality is impacted or significant performance degradation is experienced. Issue is persistent and affects many users and/or major functionality. No reasonable workaround available.

 

Level 3 – High System performance issue or bug affecting some but not all users. Short-term workaround is available, but not preferred.

 

Level 4 – Medium Inquiry regarding a routine technical issue; information requested on application capabilities, navigation, installation or configuration; bug affecting a small number of users.  Reasonable workaround available.

 

 

Changes

We may change this Policy from time to time in our sole discretion. We may also update our trouble ticket contacts or procedures by written notice to you or through the Inscale software platform.

 

Additional assistance beyond the scope of this Policy, including if you need us to address issues unique to your operating environment, business, or Customer data, is available to you through the purchase of our professional services.