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CONTRUENT ENTERPRISE

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©2023 All Rights Reserved. Privacy and Terms

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END USER SOFTWARE LICENSE AGREEMENT


CONTRUENT


END USER LICENSE AGREEMENT

 

This End User License Agreement (“Agreement”) is entered into as of the last
date below by and between Contruent, and its successors and assigns
(“Contruent”) and _________________________________________ (“Licensee”) having
its principal place of business at
________________________________________________, who has lawfully acquired a
copy of this Software from Contruent or an Contruent authorized representative
and governs the terms and conditions of access and use of the Contruent,
PRISMG2, PRISM GO, PRISM Project Manager, PRISM G2 Estimating, PRISM G2
Dashboards, PRISM G2 Docs, PRISM Integrator, as well as the associated
electronic documents, and any updates and/or upgrades Contruent makes generally
available to licensees of these products (collectively, the “Software”).
Contruent and Licensee hereafter, may be referred to individually a “Party” and
collectively “Parties.”

 


1.                LICENSE GRANT

 

1.1            License to Licensee; Provision of Software . Except as may be
otherwise expressly provided and, conditioned upon compliance with the terms and
conditions of this Agreement and any associated Contruent purchase order or
order form, Contruent grants to Licensee a non-exclusive, non-transferable,
non-sublicensable limited right, during the term set forth in the order form to
access and use the Software on: 1. either a hosted basis in accordance with this
Agreement or 2. (i) a single computer for internal use only; or (ii) a single
server for multi-user named and concurrent access over a secure Local Area
Network or secure Wide Area Network, that is owned,  leased  or otherwise
controlled  by Licensee for internal  use only . Any Affiliate and/or subsidiary
of Licensee may access and use the Software in accordance with this Agreement.
“Affiliate” means any person, directly or indirectly, in control of, controlled
by, or under common control with Licensee. A person shall be deemed to control
another person if such person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
person, whether through the ownership of voting securities, by contract or
otherwise. 

 

1.2             Limited Right to Create Licensed Software Configurations . Use
of the Software allows Licensee to input data to personalize the Software,
thereby creating Licensed Software Configurations (“Configurations”). If
Licensee creates Configurations, Licensee represents and warrants that Licensee
has all rights, licenses, authorizations, permissions or clearances necessary to
input the data for use in connection with the Software without violation of law,
rule regulation or third-party proprietary right. Licensee’s use of
Configurations is subject to the license granted in Section 1.1 and the terms
and conditions of this Agreement, Exhibits and Addendums. Configuration of the
Software is defined as inputting Licensee data into the Software. Software
Customizations are defined as changes to the functionality of the Software
including but not limited to changes to source code, calculations, workflows or
reports(excluding Report Writer).

 

1.3             License to Contruent . Licensee shall provide to Contruent a
copy of all Customizations created using publicly available data (excluding
proprietary data or classified data) upon request. Licensee hereby grants to
Contruent a worldwide, fully paid-up, royalty-free, non- exclusive,
sub-licensable, transferable, perpetual license to copy, modify, distribute,
publicly perform and publicly display such Customizations, and use, make, have
made, sell, have sold the Customizations and products containing such
Customizations. Licensee represents and warrants that Contruent , and its
licensees, successors, Licensors and assigns may use, as it deems appropriate in
its sole discretion, the publicly available data (in whole or in part) in
connection with the commercial exploitation of the Software, such Customizations
or any derivative work of the Software, without charge (fee for royalty),
restriction, condition, duty or obligation of any kind to Licensee. Upon
request, Licensee shall provide Contruent with information regarding the public
sources from which the derivative data in such Customizations was obtained.
Contruent understands and acknowledges that except as set forth in this
Agreement, all Customizations delivered to Contruent hereunder are “AS IS”
without representation or warranty of any kind, express or implied, including
but not limited to the implied warranties of fitness for a particular purpose,
merchantability, title and non-infringement. Indemnifications for Licensee are
defined in Section 13.

 

2.                 Confidentiality. This Software and any non-public information
disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”)
under this Agreement, either directly or indirectly, in writing, verbally or by
inspection of tangible objects, is proprietary and confidential information of
the Disclosing Party (“Confidential Information”). Receiving Party shall not to
use any Confidential Information for any purpose except to exercise its rights
and perform its obligations under this Agreement. Receiving Party shall not
disclose any Confidential Information to third parties or to Receiving Party’s
employees, except to those employees or third parties of the Receiving Party
with a need to know. Receiving Party shall take reasonable measures to protect
the secrecy of and avoid disclosure and unauthorized use of the Confidential
Information, including without limitation, ensuring that its employees or third
parties who have access to Confidential Information have signed a non-use and
non-disclosure agreement in content similar to the provisions hereof, prior to
any disclosure of Confidential Information to such employees. Licensee
acknowledges that the Software contains valuable confidential, unpublished
information, including but not limited to algorithms, innovations, and concepts
developed by Contruent at great expense. Contruent acknowledges that
Confidential Information of Licensee includes Licensee’s financial information,
customer lists, supplier and vendor lists, and information that identifies or
that can reasonably be used to identify a natural person (“personal
information”) and Licensee Content.

 

A Party’s Confidential Information shall not include information that: (a) is or
becomes a part of the public domain through no act or omission of the Receiving
Party; (b) was in the Receiving Party’s lawful possession prior to the
disclosure and had not been obtained by the Receiving Party either directly or
indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving
Party by a third party without restriction on the disclosure; or (d) is
independently developed by the Receiving Party without use of the Disclosing
Party’s information.

 

3.                   Mutual Obligations.

(a) Licensee; Obligations. Licensee represents and warrants that Licensee has
lawfully acquired access to the Software subscription as defined in the
Contruent order form from Contruent or an Contruent authorized representative
and that it has all necessary rights and consents to transfer the Licensee
Content to Contruent so that Contruent and its service providers may lawfully
use, process, and transfer the Licensee Content on Licensee’s behalf. Licensee
agrees not to, or permit any third party to:

 

i.                  download, redistribute, encumber, sell, rent, lease, lend,
sub-lease, sublicense or otherwise transfer the Software or the right to access
and use the Software to any third party without the express written consent of
Contruent;

 

ii.                install or permit the installation and/or use of any harmful
or malicious code, including but not limited to any automated rootkits, trojans,
viruses, spyware or other specific exploits designed to breach the security of
the Software or learn, gain access to or use the Software or the results of the
use of the Software without the knowledge and consent of Contruent;

 

iii.              attempt to or remove, disable, circumvent, or render
ineffective any code, feature, process, or method of the Software intended to
secure, encrypt, or otherwise prevent the Software from unauthorized access and
use;

 

iv.              remove or obscure Contruent’s copyright, trademark and other
proprietary rights notices, legends, symbols or labels;

 

v.                reverse engineer, alter, decompile, disassemble, or otherwise
attempt to derive the source code of the Software (except as expressly permitted
by applicable law)

 

vi.              except as permitted under Section 1.2, modify the Software or
documentation, including without limitation customization, translation, or
localization.

 

vii.             utilize the Software in connection with any service bureau or
time-sharing system or to provide processing services for any third party.

 

viii.           a llow any other person to access and use this Software via a
LAN, WAN, or other networked computer except as expressly authorized by this
Agreement.

 

ix.              use the Software for the development of or in connection with a
software application or service that has the same or substantially similar
features and/or function to the Software;

 

x.                access or use the Software (a) to send or store infringing,
obscene, threatening, or otherwise unlawful material, including material
violative of third-party privacy rights, (b) to send or store material
containing software viruses, worms, Trojan horses, or other harmful computer
code, files, or scripts; or (c) for any unlawful purpose or in violation of
applicable laws;

 

xi.              except as permitted by law or a signed written agreement of
Contruent , separate, remove or use all or a substantial part of the data
contained in the Software in connection with any other software or for any use
other than in support of the Software; or

 

xii.             publish any results of benchmark tests run on the Software to a
third party without Contruent's prior written consent.

 

(b) Contruent's Obligations. Contruent represents and warrants that it has the
power and capacity to enter into this Agreement and to observe, perform, and
comply with the terms of this Agreement. Contruent agrees:

i.                  that Contruent has good title to the Software and the right
to license and the right to provide access to the Software under this Agreement
free and clear of any encumbrances;

ii.                that the Software  will function, and the hosted services
shall be provided,  in all material respects in conformity with the
corresponding documentation provided by Contruent to Licensee (the
“Documentation");

iii.              that the media on which the Software is furnished (e.g. cloud
access), to the best of Contruent knowledge will be free from defects; and

iv.              that use of or access to the Software for the purpose
contemplated in the Agreement will not constitute or result in an infringement
or violation of any intellectual property right of a third party or any law
relating thereto.




4.                COPYRIGHT; LIMITED PERMISSION FOR BACK–UP COPY

 

4.1          Copyright . The Software (including custom programming), as
provided or modified by Contruent ) is owned by Contruent or its suppliers or
licensors, and all copies thereof, and associated trademarks are protected under
United States Copyright Law, International Treaty, trade secret, copyright,
patent, trademark, and other applicable laws. Except as expressly authorized in
this Agreement, Licensee may not use or copy or access the Software in a manner
not permitted under by this Agreement or the Documentation. Licensee agrees not
to copy, reproduce, distribute, transmit or display the Software or any
derivative work or any part or portion thereof, except as may be permitted
herein, without the express written consent of Contruent . All copies must
include and retain Contruent’s copyright and other proprietary notices and
identifying information. No other copies are permitted under this Agreement.
Licensee agrees that Contruent may assign and use an individual identifying
number (e.g., a serial or PIN number) allocated to each authorized copy of the
Software for tracking and tracing the origin of each copy thereof.

 

4.2              Limited Permission for Back-Up Copy . If Licensee elects to use
the Software on its own system this Section 4.2 will apply. Licensee may make
one backup copy of the Software for the sole purpose of security backup in the
event the original Software is destroyed or becomes corrupt. Licensee may
request a replacement copy of the Software or a license key in the event the
original and backup copy of the Software or license key are destroyed or become
corrupt. All requests are subject to validation and the approval of Contruent .
There is no additional fee for a replacement. Shipping and handling charges may
apply. All replacement copies are subject to the terms and conditions of this
Agreement as were applicable to the original copy replaced. All original and
backup copies of Software or license keys for which a replacement is issued will
be considered unauthorized for continued use for any purpose and subject to the
return and destruction provisions of Section 14.

5.                 Ownership.

5.1             Licensee acknowledges that this Agreement confers only a limited
right to use the Software as expressly set forth in this Agreement. Licensee
does not become the owner of the Software. Title, ownership rights and all
intellectual property rights in and to the Software and all copies thereof are
the sole property of Contruent (and its licensors, if any). The Software and all
copies thereof are protected under United States Copyright Law, International
Treaty, trade secret, trademark, patent, copyright and other applicable laws.
Licensee represents and warrants that it will not to use the Software or other
intellectual property contained therein except as expressly permitted by this
Agreement, nor to disclose the Software to third parties (for clarity, this
excludes Licensee Content that may be processed using the Software), or to take
any action to otherwise jeopardize, limit, or interfere in any manner with
Contruent's ownership of or rights with respect to the Software and intellectual
property pertaining thereto.

5.2             Licensee and its licensors retain all ownership and intellectual
property rights in and to Licensee Content including any Licensee Content that
may be processed using the Software, may be reformatted as part of use of the
Software, or may be contained in any report delivered to Licensee as part of use
of the Software. This Agreement does not transfer or assign to Contruent or its
licensors any ownership or intellectual property rights in and to Licensee
Content. “Licensee Content” means all data (including personal information),
text, images, audio, video, photographs, non- Contruent or third-party
applications, and other content and material, in any format and all derivative
works thereof, provided by Licensee or any of Licensee’s users that is stored
in, or run on or through, the Software. Licensee Content includes any
third-party content that is brought by Licensee or its users into the Software.
For greater certainty, any customized output (including custom report outputs)
generated by the Software exclusively for Licensee will remain Licensee’s
exclusive property and shall not be considered derivative works of the Software.
Licensee grants to Contruent and its authorized third-party service providers a
worldwide, non-exclusive license to host, copy, access, process, transmit, and
display Licensee Content as reasonably required: (a) to maintain, provide, and
improve the Software and perform under this Agreement; (b) to prevent or address
technical or security issues and resolve support requests; and (c) at Licensee’s
direction or request or as permitted in writing by Licensee.

 

6.                 Marketing & Publicity. Contruent may not use in advertising,
publicity or otherwise, including Contruent website and marketing materials,
Licensee’s name and logo or any affiliate or subsidiary of Licensee, or refer to
the existence of this Agreement in press releases, advertising or materials
distributed to prospective customers, without the Licensee’s prior written
consent.

 

7.                 Consent to Use of Data . Licensee shall allow Contruent and
its affiliates to collect and use technical data and related information,
gathered periodically to solely facilitate the provision of software updates,
product support and other services to Licensee (if any) related to the Software.
Contruent may use this information, as long as it is in a form that does not
personally identify Licensee, to improve its products or to provide services or
technologies.

 

8.                 Support . Neither this Agreement nor this license entitles
Licensee to receive from Contruent hard-copy documentation, technical support,
telephone assistance, or enhancements or updates to the Software without the
purchase of applicable services (
http://www.Contruent.com/support/customer-support/ ).  For clarity, standard
support services are included with the Software subscription at no additional
cost to Licensee.

 

8.1   Additional Software Products . In the event Licensee purchases additional
Software product(s) directly from Contruent during the term of this Agreement,
Contruent will provide Licensee a Quote that reflects the additional licenses to
be added to this Agreement, effective date(s) of Software Maintenance Support
and charges for those additional software licenses to be added under the terms
and conditions of this Agreement. Such Software and/or additional charges will
not be incorporated into this Agreement  without the prior written authorization
of Licensee pursuant to a change order signed by Licensee.

 

9.                 User ID and Password . Licensee represents and warrants that
it will keep any user ID, password and/or access or registration code
confidential and not allow any unauthorized person to use a user ID, password
and/or registration or access code for the Software. Licensee shall immediately
notify Contruent of any actual or suspected disclosure of a user ID, password
and/or access or registration code to an unauthorized person or entity.

 


10.             DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

 

LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND
CUSTOMIZATIONS ARE AT LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO
SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE, CUSTOMIZATIONS, DATA,
DOCUMENTATION AND ANY INFORMATION ACCESSIBLE OR GENERATED THROUGH THE USE OF THE
SOFTWARE ARE PROVIDED ”AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT
 WARRANTY  OF  ANY  KIND. CONTRUENT HEREBY DISCLAIMS ALL WARRANTIES AND
CONDITIONS WITH RESPECT TO THE SOFTWARE AND CUSTOMIZATIONS, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A
PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON- INFRINGEMENT OF
THIRD-PARTY RIGHTS. CONTRUENT DOES NOT WARRANT AGAINST INTERFERENCE WITH
LICENSEE’S ENJOYMENT OF THE SOFTWARE AND CUSTOMIZATIONS, THAT THE FUNCTIONS
CONTAINED IN THE SOFTWARE AND CUSTOMIZED PRODUCTS WILL MEET LICENSEE’S
REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND CUSTOMIZED PRODUCTS WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR CUSTOMIZED
PRODUCTS WILL BE CORRECTED. NO VERBAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY
CONTRUENT OR ITS AUTHORIZED REPRESENTATIVE CREATES A WARRANTY. SHOULD THE
SOFTWARE OR CUSTOMIZATIONS PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE COST OF
ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

 


11.             DISCLAIMER OF CONSEQUENTIAL DAMAGES.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT IS CONTRUENT, ITS OFFICERS,
DIRECTORS, EMPLOYEES, REPRESENTATIVES AND SUCCESSORS, LICENSORS AND ASSIGNS  OR 
ANY  PERSON  OR  ENTITY  INVOLVED  IN  THE  CREATION, PRODUCTION, DELIVERY OR
USE OF THE SOFTWARE, ITS CONTENTS OR RESULTS OF THE USE OF THE SOFTWARE LIABLE
TO LICENSEE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INJURY TO
PERSON OR PROPERTY,  DAMAGES  FOR  LOSS  OF  BUSINESS  PROFITS,  BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT
OF THE USE OR INABILITY TO USE THE SOFTWARE OR CUSTOMIZATIONS. CONTRUENT
SPECIFICALLY DISCLAIMS ALL DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES,    INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF
DATA OR PROPERTY, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR
LOSSES, ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE USE, INABILITY TO
USE, RELIANCE ON OR TRANSFER OF ANY PROPERTY, SOFTWARE, CUSTOMIZATIONS,
INFORMATION OR DATA PROVIDED, GENERATED OR MADE ACCESSIBLE UNDER THIS AGREEMENT,
REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF
CONTRUENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY OR DAMAGES.

 

12.              Limitation of Liability . In no event is Contruent ’ total
liability to LICENSEE for all damages (other than as may be required by
applicable law in cases involving personal injury) exceed the amount paid to
Contruent for this license. The foregoing limitations apply even if the above
stated remedy fails of its essential purpose.

 

13.             Indemnity . Licensee agrees to indemnify and hold harmless
Contruent , its officers, directors, employees, representatives, successors,
Licensors and assigns from and against any claims, actions, demands,
liabilities, settlements, damages, and expenses, including but not limited to
reasonable attorney fees and costs, arising from, or related to Licensee’s use
of the Software, Customizations or breach of this Agreement.

 

14.              Term and Termination / Survival . This Agreement and the
license granted herein remains effective until terminated. Licensee’s rights
under the Agreement will terminate immediately without notice from Contruent if
Licensee fails to comply with any provision of the Agreement. Upon termination,
Licensee shall uninstall or remove all copies of Software in its possession or
control. The following sections will survive termination of the Agreement: 2, 3,
4.1, 5-7, 9-18, and 20-22.

 

15.              Audit. Licensee grants Contruent and its designee the right to
examine Licensee’s records to verify compliance with this Agreement. In the
event such audit discloses non-compliance with this Agreement, Licensee shall
promptly pay to Contruent the appropriate license fees, plus reasonable costs
for conducting the audit.

 

16.             Export / Import. Licensee shall not download, use, export, or
re-export the Software except as authorized by United States law and the laws of
the jurisdiction in which the Software was obtained. In particular, but without
limitation, the Software may not be downloaded, used exported or re-exported:
(i) into, or to a national or resident of, any country to which the United
States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's
list of Specially Designated Nationals or the U.S. Department of Commerce Denied
Person’s List or Entity List. By using the Software, Licensee agrees that
Licensee is not located in any such country or on any such list. Licensee also
agrees that it shall not use these products for any purposes prohibited by
United States law, including, without limitation, the development, design,
manufacture, or production of nuclear, missiles, or chemical or biological
weapons.

 

17.               High Risk Activities. The  Software  is  not  fault-tolerant 
and  is  not  designed, manufactured or intended for use or resale as on-line
control equipment in hazardous environments  requiring  fail-safe  performance, 
such  as,  but  not  limited  to,  the  operation  of nuclear facilities,
aircraft navigation or communication systems, air traffic control, direct life
support machines, or weapons systems, in which the failure of the Software could
lead directly to death, personal injury, or severe physical or environmental
damage (“High Risk Activities“). Accordingly, Contruent specifically disclaims
any express or implied warranty of fitness for High-Risk Activities. Licensee
agrees that Contruent will not be liable for any damages arising from the use of
the Software for High-Risk Activities.

 

18.              U.S. Government Rights Notice . The Software and accompanying
documentation are deemed to be “Commercial Items,” as that term is defined at 48
C.F.R Section 2.101, consisting of “Commercial Computer Software“ and
“Commercial Computer Software Documentation," as such terms are used in 48
C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent
with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as
applicable, the Commercial Computer Software and Commercial Computer Software
Documentation are being licensed to U.S. Government end users: (i) only as
Commercial Items; and (ii) with only those rights as are granted to all other
end users pursuant to the terms and conditions herein. Unpublished- rights
reserved under the copyright laws of the United States. Contruent agrees to
comply with all applicable equal opportunity law of the United States.
Manufacturer is Contruent, 55 Shuman Blvd., Suite 1050, Naperville, IL 60563.

 

19.              Licensees Located Outside the U.S. If Licensee is located
outside the U.S., then the provisions of this Section apply. The Parties confirm
that this Agreement and all related documentation are and will be in the English
language. (LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE
CONVENTION DE MEME QUE TOUS LES DOCUMENTS Y COMPRIS TOUT AVIS QUI S'Y RATTACHE,
SOIENT REDIGES EN LANGUE ANGLAISE). Licensee is responsible for complying with
any local laws in its jurisdiction which might impact its right to import,
export or use the Software or Customizations, and Licensee represents and
warrants that it has complied with any regulations or registration procedures
required by applicable law to make this Agreement and license valid and
enforceable.

 

20.             Transfer of Licenses within Licensee’s Organization/Server Bank
. Should a client move from a hosted solution to on premise, this clause will
become active: From time to time a Licensee may ask for a license to be
transferred within its organization to a different computer or server for normal
business purposes. The transfer may be done upon written request of the Licensee
to the Contruent's contracts office.  The request must include necessary
information of server names, which license, and the number of licenses being
transferred.

 

21.              Notices . All notices required by this Agreement may be
transmitted by email, delivered by a major express mail delivery courier
service, or mailed by first class mail, registered or certified U.S. mail,
postage pre-paid, return receipt requested, to the address indicated by the
Party on the signature page hereof, or at such other address as a Party may
designate in a written notice sent pursuant to this provision. Notices that are
sent by: email will be considered received when the sender receives a return
email acknowledging receipt from the recipient, facsimile shall be deemed
received when sent (as confirmed by a transmission log), by courier on the date
received, and by U.S. mail five (5) days after deposit in the U.S. mail.

 


22.             MISCELLANEOUS

 

22.1            Governing Law; Forum and Venue . The laws of the State of
Illinois (without reference to conflict of laws principles) and federal law, as
applicable, govern the validity, performance, construction and effect of the
terms and conditions of this Agreement. This Agreement is not governed by the
United Nations Convention on Contracts for the International Sale of Goods, the
application of which is hereby expressly excluded. Any and all litigation
involving both Parties’ rights and duties under this Agreement must be brought
in a state court of competent jurisdiction in the State of Illinois, Naperville
or a federal court located in the State of Illinois.

22.2            S e verability. I n the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability will not affect any other provisions of this Agreement. This
Agreement will be construed as if such  invalid,  illegal  or  unenforceable
provisions had never been contained in it, unless the deletion of such provision
would result in such material change so as to cause completion of the
transaction contemplated herein to be unreasonable.

22.3          Assignment. The Licensee may not assign or transfer, directly or
by operation of law, this Agreement without Contruent’s prior written consent.
Any unauthorized assignment is considered a material breach and is void and
unenforceable. Contruent may freely assign this Agreement. These conditions and
the entire Agreement are binding on the permitted successors and assigns of the
Parties.

 

22.4          Entire Agreement . This Agreement sets forth the entire
understanding of the parties regarding the subject matter set forth herein and
supersedes all prior understandings, whether written or oral, and agreements
pertaining thereto. No Contruent reseller terms, or purchase orders or Licensee
purchase orders shall be incorporated into this Agreement or govern Licensee’s
use of the Software. No change, modification, alteration or addition of terms
and conditions of this Agreement is binding unless in writing and signed by an
authorized representative of each Party.

 

22.5          Amendment . This Agreement is subject to amendment at any time
upon the mutual assent of the Parties. Any such amendment must be in writing,
must identify the provisions of this Agreement that are to be amended, and must
be signed by authorized signatories of the Parties.

 

22.6          Non-Wavier . Either Party’s failure to enforce any provision of
this Agreement shall not waive that Party's rights.

 

22.7        Construction . The relationship between Contruent and Licensee is
that of independent contractors and neither Licensee nor its agents have any
authority to bind CONTRUENT in any way.

 

22.8        Headings . The headings to the sections of this Agreement are used
for convenience only and shall have no substantive meaning.

 

22.9          Disputes . The Parties shall attempt in good faith to resolve any
dispute arising out of or relating to this Agreement promptly by negotiation
between executives who have authority to settle the controversy and who are at a
higher level of management than the persons with direct responsibility for
administration of this Agreement. Any dispute, claim or controversy arising out 
of  or  relating  to  this  Agreement  or  the  breach,  termination, 
enforcement, interpretation or validity thereof, including the determination of
the scope or applicability of this agreement to arbitrate, will be determined by
arbitration in State of Illinois, DuPage County before one arbitrator. The
arbitration will be administered by JAMS pursuant to its Comprehensive
Arbitration Rules and Procedures and in accordance with the Expedited Procedures
in those Rules. Judgment on the Award may be entered in any court having
jurisdiction. This clause does not preclude Parties from seeking provisional
remedies in aid of arbitration from a court of appropriate jurisdiction. All
negotiations pursuant to this clause are confidential and must be treated as
compromise and settlement negotiations for purposes of applicable rules of
evidence.

 

22.10    Equitable Remedies . Notwithstanding the provision for arbitration of
disputes, nothing in this Agreement will preclude a Party from seeking equitable
relief from a court of appropriate jurisdiction, including but not limited to
injunctive relief or specific performance, in addition to all such other
equitable remedies as may be available. In any action or proceeding (including
arbitration) to enforce rights under this Agreement, the prevailing Party is
entitled to recover costs and reasonable attorneys’ fees.

 

22.11     Contruent Licensors. Licensee acknowledges that parts or components of
the Software may be licensed by Contruent from other persons or entities
(“Licensors”), with an Contruent right to sub- license to Licensee. Whether or
not specifically referenced in this Agreement, any such licensors will be deemed
third party beneficiaries of this Agreement, entitled to the rights, benefits
and protections applicable to Contruent under this Agreement, including without
limitation the Software use restrictions, intellectual property protection,
limitation of warranties and limitations of liability. Any such licensors will
be entitled to enforce the provisions of this Agreement, through Contruent
against Licensee, with respect to such licensors’ part or component of the
Software.

 

22.12    For On-Premise licenses. The Dashboard Software contains certain
proprietary software provided by third parties including but not limited to
certain open-source software components.

22.12.1    Third party proprietary software is licensed under the applicable
license terms set forth in the documentation and if no such terms are set forth
therein, then such software is licensed under the terms of this Agreement and
accordingly, the restrictions contained in this Agreement shall apply to such
third party proprietary software providers and third party proprietary software
as if they were Licensor’s and the Software respectively.

22.12.2   Third party proprietary software programs, including but not limited
to open-source components, which are distributed by Licensor along with their
associated license terms are listed at http://www.sisense.com/documentation/ .
Open-source components are distributed AS IS, without any warranty, express or
implied.

 

The parties have executed this Agreement below to indicate their acceptance of
its terms:


“LICENSEE”

By (Signature): ____________________

 

Title: ____________________________

 

Company Name: ___________________

 

Date: _____________________

 


Contruent

By (Signature): _____________________

 

Title: _____________________________

 

Company Name: ____________________

 

Date: ______________________

 


Exhibit A

Contruent Software Maintenance and Support Agreement (PRISM Software Products)

 

Subject to a valid and existing Contruent End User License Agreement by and
between you (the “Licensee”) and Contruent (“Contruent”), this Software
Maintenance and Support Agreement (“Maintenance and Support Agreement”) governs
the terms and conditions of the maintenance and support services (“Maintenance
and Support Services”) provided by Contruent to Licensee in connection with the
Contruent or PRISM software products licensed to Licensee under the End User
License Agreement (“Licensed Software”). The term “Licensed Software” does not
include customized Contruent  or PRISM software products. The terms, conditions
and fees associated with the maintenance and support services (“Maintenance and
Support Services”) provided by Contruent to Licensee in connection with
customized PRISM software products are included in Addendum 1 – Customization
Support Addendum and activated when applicable. Contruent and Licensee hereafter
may be referred to individually a “Party” and collectively “Parties.”

 


1.0         MAINTENANCE AND SUPPORT SERVICES:

Maintenance and Support Services consist of:

1.1               Error Correction Contruent will use all reasonable diligence
to correct verifiable and reproducible errors when reported to Contruent in
accordance with the standard reporting procedures.

1.2               Enhancements Contruent may, from time to time, issue
Enhancements  to the Licensed Software. Such Enhancements are provided at no
charge to customers who are under a current Maintenance and Support Agreement
and may include new version releases, updates, and patches of the Licensed
Software, containing error corrections and/or updates. An “Enhancement” shall
include software upgrades, new version releases, updates, and patches of the
Licensed Software and bug fixes.

Contruent will provide Licensee’s technical contact with one (1) copy of each
Enhancement for each copy of the Licensed Software being maintained under this
Maintenance and Support Agreement with instructions on installation and
descriptions of the significant changes to the Licensed Software.

Contruent will issue the Enhancement to Licensee via FTP, email or via the
United States Postal Service if firewalls or Licensee’s corporate policies
prohibit the receipt of executable files via email or FTP sites.

Contruent will provide reasonable assistance to help Licensee’s technical
contact install and operate each Enhancement. Licensee may, in its sole
discretion, choose not to install the minor fixes and patches; however, Licensee
must install the major Enhancements within three (3) months after receipt of the
update.

Contruent will issue Licensee new Enhancements to Licensee’s technical contact
with instructions on installation and a description of the significant changes
to the Licensed Software.

Contruent is not obligated to make Enhancements to the Licensed Software in any
particular respect or on any particular date and the decision to do so is in
Contruent sole discretion.

A Product Release is a completely new product offering. Product Releases are not
included as a no-charge update with a Maintenance and Support Agreement.

 

1.3               A Product Release is a completely new product offering.
Product Releases are not included as a no-charge update with a Maintenance and
Support Agreement. Technical Support Contruent will provide Licensee with
technical support in the form of online and/or telephone assistance for the
purposes of answering questions relating to the Licensed Software, including,
but not limited to, (a) clarification of functions and features of the Licensed
Software; (b) clarification of the documentation; (c) guidance in the operation
of the Licensed Software; and (d) error verification, analysis and correction,
including the failure to produce results in accordance with the documentation.
All technical support requests must be made by the identified Technical Contacts
for the license in accordance with the table set forth below (
http://www.Contruent.com/support/customer-support/).

 

Method

Information

Submittal

Availability

Required for

Contruent and PRISM

Software Support Portal

Support Portal Login

(For initial request access: Support Portal Application)

24 Hours per Day, 7 Days per Week.

Appropriate for submitting incidents, requesting documents, and submitting
enhancement requests.

 

Other access options for Contruent Technical Resources:

 

Method

Information

Response Availability

Required for

 

PRISM Software Email

 

prismg2support@Contruent.com (PRISM Central Support Office)

8:00 am to 5:00 pm US Pacific time zone (San Francisco) Monday to Friday
excluding holidays

Appropriate for all Incidents or requests except for complete system failure.

Note: Tickets will still need to be requested via the Support Portal

 

 

 

 

 

PRISM

Software

Telephone (Regional Telephone Access)

North America: +1-(925) 322-8899

(Contruent Central Support Office)

8:00 am to 5:00 pm US Pacific time zone

M-F excluding holidays

 

 

 

 

 

Appropriate for all communications and follow up.

 

 

Note: Tickets will still need to be registered via the Support Portal to ensure
thorough tracking and follow up

 

Europe: +44 (0)7599 479671

8:00 am to 5:00 pm GMT

M-F excluding holidays

 

Middle East: +961-3-868023

8:00 am to 5:00 pm Eastern European time

M-F excluding holidays

 

Africa: (+27-81-420-4570)

8:00 am to 5:00 pm Central African time

M-F excluding holidays

 

APAC: +61 430 511 061

8:00 am to 5:00 pm Australian Eastern time

M-F excluding holidays


1.4             SERVICE LEVEL AGREEMENT

The Service Levels set forth in this Section 1.4  pertain solely to the software
products created, maintained, sold, distributed, and supported by Contruent.
Contruent will use all reasonable diligence to correct verifiable and
reproducible errors when reported to Contruent in accordance with the standard
reporting procedures.

A.     PRISM Software Target Resolution Response Times:  

 

Severity Level

Condition

Initial Response

Target Resolution

 

1

A critical component of the system is down or does not function at all, and
there is no “work-around” for the problem; a significant number of users are
affected, and the production environment is inoperable.

 

4 hours

 

1-2 business days

2

A component of the system is not performing, creating a significant operational
impact.

8 hours*

Within 3 business days

 

3

A component of the system is not performing as documented; there are unexpected
results; there is no “work-around”; there is moderate or minor operational
impact.

 

24 hours*

 

Within 5 business days

4

Questions pertaining to usage of the software or clarification of software
documentation.

24 hours*

Answers provided as soon as able (prioritized)

 

5

Customer offers suggestions or requests for new product features and
enhancements.

 

72 hours*

Suggestion/Request considered for a future Release

* Does not include weekend or other non-business days

 

A.    CONTRUENT SOFTWARE HOSTING SLA is defined in Exhibit B if applicable to
Contruent proposed solution.

Notes: Contruent reserves the right to assess the severity level of submitted
issues and perform the appropriate adjustments. Support Requests must be entered
in the Support Portal to ensure the Initial Response times.

1.5                  Limitations. Contruent shall be under no obligation to
provide Maintenance and Support Services that include the diagnosis and
rectification of any fault arising from:

 

(a)     Support of Licensee’s (i) hardware, (ii) operating systems, (iii)
network setup, (iv) network maintenance and (v) setup and use of any file access
control systems;

 

(b)    Defects caused by anything other than the Licensed Software program, that
is, the Licensee’s hardware, operating system, modem, network, etc.

 

(c)     The improper use, operation, or neglect of the Licensed Software;

 

(d)    Remedial action resulting from an error in the Licensee’s installation or
resulting from the Licensee not having complied with Contruent's documentation
material, manuals or other written instructions and directions;

 

(e)      T he failure by the Licensee to implement recommendations in respect of
the solutions and faults previously advised by Contruent;

 

(f)       The modification of the Licensed Software or its merger (in whole or
in part) with any other software; and faults previously advised by Contruent;

 

(g)     Any repair, adjustment, alteration or modification of the Licensed
Software by any person other than Contruent without Contruent's prior written
consent; or

 

(h)    The use of the Licensed Software for a purpose for which it was not
designed.

 

1.6                         Charges for Excluded Support. Contruent may on the
request of the Licensee provide support notwithstanding that the fault results
from any circumstances described in Section 1.4 above or that the support
requested is not covered by the terms of this Maintenance and Support Agreement.
Contruent shall in such circumstances be entitled, upon prior written notice and
agreement by Licensee in writing, to charge for such service at Contruent’ s
rates from time to time for work undertaken on a time and materials basis or
fixed quote.

 


2.0   TERM / RENEWAL

Contruent will supply the services described in Section 1 ("Services") to the
Licensee with respect to the products for which Contruent has granted a license
to the Licensee pursuant to an End User License Agreement for the same software
subscription term and defined in the End User License Agreement. .

 


3.0                 FEES / PAYMENT

Fees for the Maintenance Services are included in the fees for the products for
which Contruent has granted a license to the Licensee pursuant to an End User
License Agreement. The provision of services under this Maintenance and Support
Agreement is subject to the Licensee’s payment of all applicable license fees.


4.0   DISCONTINUATION OF PRODUCTS AND SERVICES

Contruent may, from time to time, discontinue Licensed Software, discontinue
support of select Licensed Software, or discontinue or modify any or all
Maintenance and Support Services provided under this Maintenance and Support
Agreement. If Contruent discontinues Maintenance and Support Services during the
term of this Maintenance and Support Agreement, then Licensee may be entitled to
a prorated portion of any fees paid during the effected period.

 


5.0   SERIAL NUMBER

Maintenance and Support Services are provided per Licensed Software serial
number and to only the Licensee to whom the serial number is assigned.
Maintenance and Support Services may not be transferred to a different serial
number without the express written consent of Contruent.

 

6.0         Order of Precedence .  In the event of a conflict between or among
the terms of this Maintenance and Support Agreement and any other agreements,
this Agreement shall govern with respect to the Maintenance and Support
Services.






 


 

 

CONTRUENT

END USER LICENSE AGREEMENT - EXHIBIT B

SERVICE LEVEL ADDENDUM

 

A. Availability:   Contruent will make the Service available 99% of the time,
except as provided below.  Availability will be calculated per calendar quarter,
as follows:

 



Where:

 * “total” means the total number of minutes for the quarter
 * “non-excluded” means downtime that is not excluded
 * “excluded” means the following:
    * Planned downtime, which shall be any period for which Contruent or Hosting
      partner gives at least 8 hours’ notice that the Service will be
      unavailable.
    * Any period of unavailability lasting 15 minutes or less.
    * Any unavailability caused by circumstances beyond Contruent's reasonable
      control, including without limitation, acts or omissions of Customer or
      its users, including any failure to comply with the Agreement or the
      Documentation, acts of God, acts of government, flood, fire, earthquakes,
      civil unrest, acts of terror, strikes or other labor problems (other than
      those involving Contruent employees), computer or telecommunications or
      Internet service provider failures or delays, hosting center failures
      (including unavailability of the salesforce.com platform), delays
      involving hardware or software not within Contruent possession or
      reasonable control, and network intrusions or denial of service attacks.

 

For any partial calendar quarter during which Customer subscribes to the
Service, availability will be calculated based on the entire calendar quarter,
not just the portion for which Customer subscribed.  In addition, unavailability
of some specific features or functions within the Service, while others remain
available, shall not constitute unavailability of the Service so long as the
unavailable features or functions are not, in the aggregate, material to the
Service as a whole.

 

Unavailability of the Service will be measured from the time that Customer
reports Service unavailability to the Contruent Support Desk. 

 

B.  Service Level Credits:  Should Contruent fail to achieve at least 99%
availability during any calendar quarter, Contruent shall provide Customer a
credit on the next invoice following the term in which such failure occurred. 
Such credit shall be equal to five percent (5%) of the applicable fees due and
payable by Customer for the applicable Services for the affected calendar
quarter. 

 

The credits specified in this Section B shall be Contruent’s sole liability and
Customer’s exclusive remedy for failure to meet the availability target
specified in Section A above.

 

C.  Reporting and Claims.  

 

To be entitled to the remedies set forth in Section B above, Customer must send
an email to contractandproposals@contruent.com with the following details:

 

•  Billing information, including company name, billing address, billing contact
and billing contact phone number.

•  Information with dates and time periods for each instance of downtime during
the relevant quarter.

•  An explanation of the claim made under Section B, including any relevant
calculations.

 

Claims may be made on a calendar quarter basis only, and must be submitted
within 10 days after the end of the calendar quarter in which the incident(s)
giving rise to the claim occurred.

 

All claims will be verified against Contruent’s system records.  Should
Contruent disagree with any period of downtime claimed by Customer, Contruent
will provide to Customer a record of Service Availability for the period in
question. Contruent will provide such records only in response to claims made by
Customer in good faith.

 

 

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