Desktop Intelligence and Automation – Terms and Conditions
TEHAMA INC., A CANADIAN CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 319 MCRAE AVE., SUITE 701, OTTAWA, ONTARIO, CANADA K1Z 0B9 (“TEHAMA”), AND ITS LICENSORS PROVIDES THE SOLUTION SOLELY ON THESE TERMS AND CONDITIONS (“TERMS”) AND THE APPLICABLE ORDER FORM (COLLECTIVELY, “AGREEMENT”) AND ON THE CONDITION THAT ORGANIZATION ACCEPTS AND FULLY COMPLIES WITH THIS AGREEMENT. BY SIGNING AN ORDER FORM WHICH REFERENCES THESE TERMS OR BY USING, ACCESSING, OR ACTIVATING THE SOLUTION AFTER BEING MADE AWARE OF THIS AGREEMENT, (A) ORGANIZATION ACCEPTS THIS AGREEMENT AND AGREES THAT ORGANIZATION IS LEGALLY BOUND BY ITS TERMS AND CONDITIONS AND (B) YOU REPRESENT AND WARRANT, IF ORGANIZATION IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF ORGANIZATION AND BIND ORGANIZATION TO ITS TERMS AND CONDITIONS. IF ORGANIZATION DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, TEHAMA WILL NOT AND DOES NOT LICENSE THE SOLUTION TO ORGANIZATION AND ORGANIZATION MUST NOT ACCESS, ACTIVATE, OR OTHERWISE USE THE SOLUTION OR ANY DOCUMENTATION PROVIDED THEREWITH.
Certain capitalized terms are defined in this Section 1, and others are defined contextually in the Agreement. “Agent” means licensor’s client software provided for End User operating systems and Devices which connect to the Cloud Software. “Cloud Software” means licensor’s software-as-service offering which supports the enrollment of Agents for the purposes of monitoring, automation and troubleshooting Devices. “Third Party Device” means physical and virtual desktops and laptops, whether deployed to End Users remotely, on a Local Area Network, hosted in a cloud, or in an on-premise data center other than a Tehama Desktop. “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes that is available to licensees and End Users of the Solution. “End User” means an employee of Organization, or any other individual who uses a Device managed by Organization using the Solution, or who acts as an administrator of the Solution for the Organization. “Organization Data” means any data or other materials of any type that Organization submits, uploads, transmits or otherwise makes available to or through the Solution. “Solution” means the licensor’s solution (formerly known as “Avacee Systems Intelligence Platform”) provided by ControlUp Inc. consisting of the Cloud Software and the Agent. “Tenant” means a separate instance of the Cloud Software provided by Tehama to Organization for use with Organization’s Devices.
- License Grants
- Subject to the terms and conditions of this Agreement and Organization’s payment of the applicable amounts specified in the Order Form (“Fees”), Tehama hereby grants to Organization with respect to the Solution a non-exclusive, non-transferable, non-sublicensable (a) license to install, execute and run the Agent on Organization’s Tehama Desktops and, subject to the limitations set out in the Order Form, Third Party Devices (collectively, “Devices”) solely for use internally with the Tenant by its End Users for its own business, and (b) right to access and use Tenant solely for use internally by its End Users for its own business for the purposes of monitoring, automation and troubleshooting of such Devices. No rights are granted to Organization pursuant to this Agreement other than as expressly set forth in this Agreement.
- Subject to the terms and conditions of this Agreement, and solely to the extent necessary to provide the Solution and any related support, Organization grants Tehama a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Organization Data including accessing Organization accounts, and the Solution with administrator permission to respond to support requests.
- IP Ownership
- As between Organization and Tehama, Organization retains all right, title and interest (including without limitation all intellectual property rights) in and to Organization Data in the form submitted through the Solution.
- Tehama and its licensors retain all right, title and interest (including without limitation all intellectual property rights) in and to the Solution which is licensed, not sold, to Organization by Tehama and its licensors. In the event Organization provides Tehama with any suggested improvements to the Solution (“Feedback”), Tehama and its licensors will be entitled to use the Feedback without restriction. Organization hereby grants to Tehama and its licensors a worldwide, non-exclusive, perpetual, irrevocable, sub-licensable, royalty free right and license to use such Feedback for their business purposes.
Except as otherwise expressly permitted by the Agreement, Organization will not: (a) reverse engineer, decompile, disassemble or interfere with or otherwise circumvent mechanisms in the Solution intended to limit the Organization’s use; (b) license, sell, rent, lease, transfer, assign, distribute, display, host, disclose, permit timesharing or service bureau use, or otherwise make the Solution available to any third party; (c) reproduce, modify, adapt or create derivative works of the Solution or reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Solution, except to the extent expressly permitted by applicable law (and then only upon advance notice to Tehama); (d) remove or obscure any proprietary or other notices contained in the Solution; (e) use the Solution for competitive analysis or to build competitive products; (f) publicly disseminate information regarding the performance of the Solution; (g) knowingly interfere with service to any of Tehama’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Solution; (h) create any “links” to or “frame” or “mirror” of the Solution or any portion thereof; (i) use the Solution to create, collect, transmit, store, use or process any Organization Data that: (i) Organization does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (j) encourage or assist any third party to do any of the foregoing. Notwithstanding (a), Organization may make a backup copy of the Agent in whole or in part solely to the extent necessary for Organization’s internal maintenance of its computer system.
- Organization Responsibilities
- Organization must comply at all times with the terms and conditions of this Agreement and all applicable laws. Organization represents and warrants that: (i) Organization has obtained all necessary rights, releases and permissions to submit, upload, transmit or otherwise make Organization Data available to or through the Solution; and (ii) Organization Data and its submission and use will not violate (a) any applicable laws; (b) any third-party intellectual property, privacy, publicity or other rights; or (c) any of Tehama’s terms and conditions governing the submission and use of data. Tehama assumes no responsibility or liability for Organization Data and Organization is solely responsible for the consequences of submitting and using Organization Data with the Solution.
- Organization is responsible for reviewing the Documentation and understanding the settings and controls of the Solution which give all Administrators the ability to remotely manage and configure Devices, including deletion of data or other actions that can impact End User productivity. In particular, Organization is responsible for the security of Administrator credentials and both for controlling whom it allows to act as an Administrator and for the activities of all Administrators.
- Organization is responsible for all internal management and administration of the Solution for End Users and will control the security, administration and management of the Solution on all Devices and all activity therein (including but not limited to remotely managing and configuring Devices, deleting data, or any other actions that will impact End User functionality and protect against misuse of the Solution). Organization is solely responsible for acquiring, servicing, maintaining and updating all Devices and communications services (such as Internet access) that are required to allow Organization to use the Solution, and for all expenses relating thereto.
- Organization acknowledges that the Tenant is an on-line, subscription-based product, and that in order to provide improved customer experience, Tehama’s licensors will from time to time make changes to the Solution and update the applicable Documentation accordingly.
- Tehama Responsibilities
- Support. Subject to Organization providing it with any required access to the Solution, Tehama agrees to provide the support set out in Exhibit 1 at no additional charge to the applicable.
- Warranty Disclaimer
THE SOLUTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TEHAMA MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, RELIABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TEHAMA DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTIES. Organization is solely responsible for determining whether the Solution (including, without limitation, the applicable administrative, physical, technical, security, and other safeguards) meet the Organization’s technical, business or regulatory requirements.
- Indemnification and Limitation of Liability
- Indemnification. Organization will defend, indemnify and hold harmless Tehama and its affiliates, officers, directors, agents and employees (collectively, “Representative”) from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of any settlement agreed to by Organization) resulting from any third party claim arising from or related to Organization’s access to or use of the Solution. Tehama will promptly notify Organization after Tehama’s receipt of notice of the claim; give Organization sole control of the defense and any settlement negotiations; and give Organization, at Organization’s expense, the information, authority, and assistance Organization reasonably needs to defend against or settle the claim provided Organization may not settle the claim without the written consent of Tehama unless the settlement involves a complete release of liability against Tehama and involves only monetary damages paid by Organization.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY (NOR ITS REPRESENTATIVES, SUPPLIERS, OR LICENSORS) HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, COSTS OF DELAY, FAILURE OF SECURITY MECHANISMS, LOSS OF OR INACCURATE DATA, LOST SAVINGS, OR OTHER SIMILAR PECUNIARY LOSS) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TEHAMA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, EXCEED THE AMOUNTS ACTUALLY PAID BY ORGANIZATION HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.The limitations of liability set forth in this Agreement reflect the allocation of risk agreed to by the Parties. The Parties would not enter into this Agreement without these limitations on its liability.
A party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such 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. In addition, Tehama may terminate this Agreement for any reason by providing Organization with 45 days advance written notice and refunding any unused prepaid Fees after termination. Organization shall, upon termination, uninstall all copies of the Solution, unregister their Devices from the Tenant, and notify Tehama that such steps have been taken.
Tehama shall have the right, upon reasonable notice during normal business hours, to audit, at Tehama’ expense, Organization’s compliance with its obligations hereunder through a remote or on-site audit of Organization’s records by Tehama or a third party representative of Tehama under obligations of confidentiality. In the event that an audit establishes that Organization is not in compliance, Organization shall reimburse Tehama for the cost of the audit and shall promptly pay to Tehama all outstanding Fees.
Organization may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Agreement without Tehama’s prior written consent, and any attempted assignment without such consent will be null and of no effect. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, communications and understandings with respect to the Solution. Tehama may modify these Terms at any time by posting a revised version or by otherwise notifying Organization and by continuing to use the Solutions, Organization agrees to be bound by the modified Terms. The terms and conditions of this Agreement, including the Order Form, shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements. The Agreement shall be construed in accordance with the laws of Ontario, Canada (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the provincial or federal courts located in Ottawa, Ontario, Canada and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. Neither party will be in default of any provision of this Agreement (other than Organization’s obligation to pay amounts due to Tehama hereunder) for any failure in performance resulting from acts or events beyond its reasonable control. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission or by overnight delivery service and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set out in the Order Form.
Exhibit 1 SupportTehama Support:
- Tehama is responsible for providing Organization and its End Users with Level 1 Support in accordance with the response times referenced in the Order Form.
- In particular, Tehama will provide assistance with respect to the installation of the Agent on Tehama Desktops as well as Level 2 Support in the form of escalations from Level 1 to Licensor Support.
- Tehama will contractually require its licensor to provide Level 3 assistance, i.e. escalations from Tehama Level 2 support team, in accordance with the following provisions:
Severity Level Definitions Licensor support prioritizes its actions for a submitted service request based on an assessment of the impact of the issue on Organization’s operations. Each ticket is prioritized according to these guidelines:
1 – Urgent
- Production server or other mission critical system is down and no workaround is immediately available.
- All or a substantial portion of End User’s mission critical data is at a significant risk of loss or corruption.
- End user is experiencing a substantial loss of service.
- End user’s business operations have been severely disrupted.
2 – High
- Major functionality is severely impaired.
- Operations can continue in a restricted fashion, although long-term productivity might be adversely effected or a major End User milestone is at risk.
- Ongoing and incremental installations are affected.
- A temporary workaround is available.
3 – Normal
- Partial, non-critical loss of functionality of the software.
- Impaired operations of some components, but allows the End User to continue using the software.
- Initial installation milestones are at minimal risk.
4 – Low
- General usage questions.
- Cosmetic issues, including errors in the documentation
Support Plan Severity Level (as defined above) Initial Response Time Platinum 1 – Urgent 2 Hours, 24 hours a day, 7 days a week 2 – High 4 Business Hours 3 – Normal 4 Business Hours 4 – Low 8 Business Hours