LAST UPDATE: July 26, 2022
These INSIGHT2PROFIT Software-as-a-Service Terms and Conditions (the “SaaS Terms”) and any Statement of Service or similar ordering document entered between Client and INSIGHT detailing Client’s subscription to the Solution (“Statement of Service” or “SOS“) linking to these terms, including any other document incorporating these SaaS Terms constitute the “Agreement” between the Parties. The Agreement governs INSIGHT’s provision of, and Client’s subscription to, the Solution. BY EXECUTING A STATEMENT OF SERVICE LINKING TO THESE SAAS TERMS, CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT.
“INSIGHT” means Price for Profit, LLC d/b/a INSIGHT2PROFIT. “Client” means the entity executing the SOS with INSIGHT. Each of INSIGHT and Client is a “Party” and, collectively, the “Parties”. Capitalized terms shall have the definitions ascribed to them herein, including as set forth in Exhibit A.
BY ACCESSING THE PLATFORM AND UTILIZING THE SOLUTION, CLIENT AGREES THAT IT HAS READ THESE SAAS TERMS AND AGREES TO BE BOUND BY THE AGREEMENT.
SECTION 1 – SAAS SUBSCRIPTION
1.1 Access To and Use of the Solution.
1.1.1 Subject to and conditioned on Client’s and its Users’ compliance with the terms and conditions of this Agreement, INSIGHT as a result of this grants to Client a non-exclusive, non-transferable subscription to access and use the Solution during the Subscription Term, solely for use by Users under the terms and conditions herein and the Statement of Service. Such use is limited to the Client’s internal use.
1.1.2 INSIGHT shall provide Client with Access Credentials to access the Platform within a reasonable time following the execution of a Statement of Service. The total number of Users will not exceed the number set forth in the Statement of Service, except as agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
1.1.3 Client shall be solely responsible for the management, security, and use of all passwords. INSIGHT shall have no liability for any unauthorized use or misuse of such passwords. INSIGHT reserves the right to refuse registration of or cancel passwords it deems inappropriate and to terminate or suspend any service in material breach of this Agreement, the Documentation, or that may otherwise harm the Solution, in INSIGHT’s sole discretion.
1.1.4 Subject to the Service Level Agreement attached as Exhibit B, INSIGHT will use commercially reasonable efforts to ensure that the Platform is available on a 24x7x365 basis.
1.2 Technology Services. Upon mutual agreement, INSIGHT will provide the implementation of, and training on, the Solution (“Implementation Services“) and other consulting, advisory, and professional services (the “Professional Services“), each as further outlined within the Statement of Service. The Implementation Services and Professional Services provided hereunder are collectively referred to as the “Technology Services“.
1.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties,
1.3.1 INSIGHT has and will retain sole control over the operation, provision, maintenance, and management of the INSIGHT Materials; and
1.3.2 Client has and will retain sole control over the operation, provision, maintenance, and management of, and access to and use of, the Client Systems, and sole responsibility for all access to and use of the INSIGHT Materials by any Person by or through the Client Systems or any other means controlled by Client or any User, including any: (i) information, instructions, or materials provided by any of them to the Solution or INSIGHT; (ii) results obtained from any use of the Solution or INSIGHT Materials; and (iii) conclusions, decisions, or actions based on such use.
1.4 Changes. INSIGHT reserves the right, in its sole discretion, to make any changes to the Technology Services, Solution, and INSIGHT Materials that it deems necessary or valuable to (a) maintain or enhance: (i) the quality or delivery of INSIGHT’S services to its customers; (ii) the competitive strength of or market for INSIGHT’S services; or (iii) the Solution’s or Technology Services’ cost efficiency or performance; or (b) to comply with applicable law.
1.5 Subcontractors. From time to time, at its discretion and without Client’s consent, INSIGHT may engage third parties to perform Technology Services or assist in the provision of the Solution to Client (each, a “Subcontractor”).
1.6 Suspension or Termination of Access. INSIGHT may, directly or indirectly, and by use of an INSIGHT Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Client’s, any User’s, or any other Person’s access to or use of all or any part of the Solution, the Technology Services, or INSIGHT Materials, without incurring any resulting obligation or liability, if: (a) INSIGHT receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires INSIGHT to do so; or (b) INSIGHT believes, in its sole discretion acting reasonably, that: (i) Client or any User has failed to comply with any term of this Agreement, or accessed or used the Solution beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Client or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.6 does not limit INSIGHT’s other rights or remedies, whether at law, in equity, or under this Agreement.
1.7 Updates. INSIGHT will develop, implement, and maintain updates, fixes, or resolutions to problems or bugs in the Solution at its discretion (“Updates”). Updates will be made available to the Client as of the dates such Updates are generally made available to all INSIGHT Clients.
SECTION 2 – USE RESTRICTIONS
2.1 Use Restrictions. Client shall not, and shall not permit any other Person to, access or use the Solution or INSIGHT Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the previous, Client shall not, except as this Agreement expressly permits:
2.1.1 copy, modify, or create derivative works or improvements of the Solution or INSIGHT Materials;
2.1.2 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Solution or INSIGHT Materials to any person, including on or in connection with the internet or any time-sharing, service bureau, software-as-a-service, cloud, or other technology or service;
2.1.3 reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Solution or INSIGHT Materials, in whole or in part;
2.1.4 bypass or breach any security device or protection used by the Solution or INSIGHT Materials or access or use the Solution or INSIGHT Materials other than by User through the use of their own then valid Access Credentials;
2.1.5 input, upload, transmit, or otherwise provide to or through the Solution or INSIGHT Systems, any information or materials that are unlawful or harmful, or contain, transmit, or activate any Harmful Code;
2.1.6 damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Solution, INSIGHT Systems, or INSIGHT’s provision of services to any third party, in whole or in part;
2.1.7 remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Solution or INSIGHT Materials, including any copy thereof;
2.1.8 access or use the Solution or INSIGHT Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any third party, or that violates any applicable Law;
2.1.9 access or use the Solution or INSIGHT Materials for purposes of competitive analysis of the Solution or INSIGHT Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the INSIGHT’s detriment or commercial disadvantage; or
2.1.10 otherwise access or use the Solution or INSIGHT Materials beyond the scope of the authorization granted under this Agreement.
SECTION 3 – INTELLECTUAL PROPERTY OWNERSHIP
3.1 Ownership of INSIGHT IP. INSIGHT owns, and shall retain and continue to own, all right, title and interest in the Solution, INSIGHT Materials, Documentation, and other techniques, methodologies, and other intellectual property created or obtained by INSIGHT in connection with the performance of its obligations under this Agreement (collectively, the “INSIGHT IP”). To the extent that ownership in the INSIGHT IP does not vest automatically in INSIGHT, the Client agrees to assign all such ownership rights to INSIGHT – any improvements, enhancements, or modifications to, or derivatives or extensions of, the INSIGHT IP.
3.2 License to Use Client Data. For INSIGHT to provide the Solution and the Technology Services to Client, Client must provide INSIGHT with specific Client Data. Unless otherwise agreed upon by Client and INSIGHT in a Statement of Service, Client will be solely responsible for all data conversion and other services necessary to convert Client Data to the prescribed formats. The client is responsible for obtaining, if necessary, any third-party rights and licenses for INSIGHT to use the Client Data in the manner contemplated by this Agreement. During the Term, the Client hereby grants INSIGHT a non-exclusive license to use and Process the Client Data and any Analytics generated by the Solution or Technology Services to provide the Solution and the Technology Services hereunder.
3.3 Ownership of Client Data and Analytics. Client shall retain all ownership rights in and to the Client Data that Client may provide to INSIGHT. However, INSIGHT may compile statistics and other data on an aggregated, non-identifiable basis (the “Aggregated Data”). It may use such Aggregated Data as it deems necessary and desirable to fulfill its obligations hereunder to improve its products and services. The Client shall own all right, title, and interest in and to the Analytics generated by the Solution and delivered by INSIGHT.
3.4 No Other Transfer of Ownership Rights. Except for those express licenses granted in Section 3.2 and 3.3 hereunder, neither party shall gain under this Agreement any rights of ownership of copyrights, patents, trade secrets, trademarks, or any other intellectual property rights owned by the other, and no other licenses are granted by either party by implication, estoppel or otherwise.
3.5 Third-Party Materials. All Third-Party Materials provided in connection with the Solution and/or the Technology Services are provided “As Is”) and any representation or warranty of or concerning any Third-Party Materials is strictly between Client and the third party owner or distribution of the Third-Party Materials
SECTION 4 – PAYMENT
Payment for the subscription to the Solution shall be as set forth in the Statement of Service and shall be governed by the General Terms.
SECTION 5 – TERM AND TERMINATION
5.1 Subscription Term. Client’s subscription to the Solution and the Technology Services as provided hereunder shall be in effect for the duration of the subscription as set forth in Statement of Service (the “Subscription Term”), unless earlier terminated as provided hereunder.
5.2 Termination. Either Party may terminate, or suspend performance under, the Agreement or the Statement of Service as provided in the General Terms and, unless otherwise mutually agreed upon by the Parties, the termination of the Agreement as referenced by the General Terms, shall automatically terminate these SaaS Terms and Client’s subscription to the Solution.
5.3 Effect of Termination. Upon termination of Client’s subscription to the Solution, Client shall pay those amounts as set forth in Section 6.5 of the General Terms (Effect of Termination).
5.4 Survival. The provisions of this Agreement that by their nature extend beyond the termination of this Agreement, including Sections 3-10 will survive and remain in effect until all obligations are satisfied.
SECTION 6 – INDEMNIFICATION
6.1 INSIGHT Indemnification. INSIGHT shall, at its expense, defend any claim or action brought against Client (collectively, “Claims”) alleging that the Solution or the Technology Services (i) infringes a third party’s valid U.S. patent, copyright or trademark, or (ii) misappropriates any trade secret. INSIGHT shall pay any final judgments awarded, or settlements entered into in connection in addition to that, provided, that: Client (a) gives INSIGHT prompt notice of any actual or threatened Claims, (b) gives sole control of the defense or settlement of such Claims to INSIGHT, and (c) cooperates fully with INSIGHT and its counsel in the defense or settlement thereof. INSIGHT shall have no liability for any settlements entered into by Client without INSIGHT’s prior written consent.
6.2 Right to Procure or Modify. If a Claim of infringement under Section 6.1 occurs, or if INSIGHT determines that a Claim is likely to occur, INSIGHT may, in its sole discretion, either: (i) procure for Client the right or license to continue to use the Solution and/or the Technology Services free of the infringement claim; or (ii) modify the Solution and/or the Technology Services to make it non-infringing. If these remedies are not reasonably available to INSIGHT, INSIGHT may, at its option, terminate the Statement of Service and return any fees paid by Client applicable to the periods after the date of such termination.
6.3 Exclusive Remedy. The provisions of this Section 6 are the sole and exclusive obligations and liability of INSIGHT and its affiliates (and the sole and exclusive remedy of Client) for any patent, copyright, trademark, trade secret, or other intellectual property rights infringement arising out of, or relating to, the Solution, the Technology Services, and this Agreement.
6.4 Client Indemnification. Client agrees to indemnify and hold harmless INSIGHT against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any third party claim or action that arises from (i) Client’s alleged violation of any representation, covenant or warranty made by Client, (ii) Client Data, including any use of Client Data by or on behalf of INSIGHT in accordance with this Agreement; or (iii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client, including INSIGHT’s compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by INSIGHT.
SECTION 7 – WARRANTIES
7.1 Representations and Warranties of Client. Client represents and warrants that: (i) Client has all rights and authority necessary to enter into this Agreement, (ii) this Agreement will not conflict with any other agreements, obligations, or regulations in which Client is subject to; and (iii) Client has all necessary right, title and interest in the Client Data has obtained all consents, licenses, permissions and releases necessary to grant INSIGHT to use such content, and INSIGHT’s use of such Client Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or security rights of any third party or violate any applicable Law.
7.2 WARRANTY DISCLAIMER. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THE STATEMENT OF SERVICE, THE SOLUTION AND THE TECHNOLOGY SERVICES ARE PROVIDED TO CLIENT “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INSIGHT HEREBY DISCLAIMS ANY AND ALL EXPRESSLY AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INSIGHT MAKES NO WARRANTY OF ANY KIND THAT THE SOLUTION, OR THE TECHNOLOGY SERVICES OR THE RESULTS OF THE USE THEREOF, WITLL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS.
SECTION 8 – LIMITATION OF LIABILITY
The Parties hereby acknowledge and agree that the limitation of liability provision and its exclusions (Section 9 (Limitation of Liability)) set forth in the General Terms shall apply to any liabilities arising out of or relating to this Agreement and INSIGHT’s provision of the Solution, and that such liability shall be considered cumulative under any liability of INSIGHT’s arising out of the General Terms. For the avoidance of doubt, any liability arising out of this Agreement shall not be considered a separate liability and all liabilities arising out of this Agreement and the General Terms shall be considered together when calculating the total liability of INSIGHT.
SECTION 9 – CONFIDENTIALITY
The parties hereby acknowledge and agree that any information or materials provided hereunder shall be considered “Confidential Information” under the General Terms and Section 10 (Confidentiality) shall apply to such information.
SECTION 10 – GENERAL PROVISIONS
10.1 Applicability of the General Terms. These SaaS Terms supplement the terms and conditions of the General Terms and shall be incorporated by reference into the General Terms. In the event of a conflict between these SaaS Terms and the General Terms, these SaaS Terms shall control.
10.2 Entire Agreement. The Agreement, the General Terms, and all Exhibits hereto constitute the entire agreement between the parties concerning the subject matter hereof and supersede all understandings, negotiations, and prior written agreements concerning the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon any party unless made in writing and signed by the party sought to be bound.
Exhibit A – Definitions
- “Access Credentials” is means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology, or device used, alone or in combination, to verify an individual’s or Client’s identity and authorization to access and use the Solution.
- “Analytics” means the output of the Solution.
- “Client Data” means the information, data, and other content provided by Client or on Client’s behalf to INSIGHT for use in the provision of the Solution.
- “Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by the Client or through the use of third-party services.
- “Documentation” means the then-current authorized guides and manuals that are delivered or made available by INSIGHT to its Clients for use with the Solution.
- “General Terms” means those INSIGHT2PROFIT General Terms & Conditions found here, which govern INSIGHT’s provision of, and Client’s use and receipt of, certain services.
- “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the previous or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Client or any User from accessing or using the Solution or INSIGHT Systems as intended by this Agreement. Harmful Code does not include any INSIGHT Disabling Device.
- “INSIGHT Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, a software routine, or other disabling devices) used by INSIGHT or its designee to disable Client’s or any User’s access to or use of the Solution automatically with time or under the positive control of INSIGHT or its designee.
- “INSIGHT Materials” means the Solution, Specifications, Documentation, and INSIGHT Systems and any other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, or plans that are provided or used by INSIGHT or any Subcontractor in connection with the Solution or Technology Services or otherwise comprise or relate to the Solution, Technology Services or INSIGHT Systems.
- “INSIGHT Systems” means the information technology infrastructure used by or on behalf of INSIGHT in providing the Solution or performing the Technology Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by INSIGHT or through the use of third-party services.
- “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirements of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
- “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
- “Platform” means the technology platform which encapsulates the proprietary collection of decision support and analytics capabilities developed by INSIGHT and which hosts the Solution.
- “Process” means to take any action or perform any operation or set of operations that the Solution is capable of handling or acting on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
- “Specifications” means the specifications for the Solution outlined in the Statement of Service.
- “Solution” means the online solution hosted by the Platform that provides outputs to Client in the form of reports.
- “Statement of Service” means a document that both parties have signed, incorporates the terms of these SaaS Terms and sets forth the Fees to be paid by the Client and the Technology Services to be provided by INSIGHT according to these SaaS Terms.
- “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Solution or the Technology Services that are not proprietary to INSIGHT.
- “User” means a single named employee of Client who Client designates as such and is assigned a unique username and password to access the Solution. Users are only permitted to use their Solution credentials to perform work for the Client.
Exhibit B – Service Level Agreement
Certain Definitions. For purposes of this Service Level Agreement, the following terms shall have the meaning set forth herein. Capitalized terms used in this Service Level Agreement but not defined herein, shall have the meaning otherwise ascribed to it in the SaaS Terms.
- “Incident” means an outage, error, defect, deficiency, failure, or other similar events within the control of INSIGHT that materially degrades or prevents the performance of the Platform.
- “Scheduled System Down Time” means the total time during which the Platform is down and not made available to the Client due to planned maintenance or correction.
- “Service Credit” means a credit of fees prepaid by Client to INSIGHT in an amount equal to the percentage of the recurring fee for the Continuous Improvement phase as described further in the Statement of Service (the “Recurring Fee”) otherwise payable by Client according to the Statement of Services for a period during which Unscheduled System Down Time occurs.
- “System Availability” means the percentage of time during which the Platform is available to the Client and working without Incident (as further defined herein).
- “Unscheduled System Down Time” is when the Platform is not available to the Client due to an Incident.
1. Support and Maintenance of Platform. INSIGHT will maintain and provide or cause to be provided support for the Platform according to its current support policies. Support and maintenance of the Platform shall include, without limitation, the following:
(a) INSIGHT shall use commercially reasonable efforts to maintain and operate, on a twenty-four (24) hour per day, seven (7) days per week, 365 days per year basis, the Platform is with not less than a 99.5% rate of System Availability.
(b) INSIGHT shall use commercially reasonable efforts to perform all Scheduled System Downtime outside INSIGHT’s regular business hours of Monday through Friday from 8:00am to 9:00pm Eastern Standard Time (EST). If Unscheduled System Down Time is necessary, INSIGHT shall advise the Client as soon as reasonably practicable before commencing.
(c) Provide software support and maintenance for the Platform, including, without limitation, correction of software “bugs,” errors, and defects so that the Platform operates as intended.
(d) Satisfy the Emergency Response Procedure (described in Section 2 below) and the System Availability requirements outlined in this Service Level Agreement.
2. Emergency Response Procedure.
INSIGHT will use commercially reasonable efforts to correct any Incident that causes Unscheduled System Down Time as quickly as possible and minimize the adverse impact of the Unscheduled System Down Time on the provision of the Platform. INSIGHT will follow the Emergency Response Procedure outlined in Section 2 of the Service Level Agreement.
(a) Incident Classification. When an Incident occurs concerning the Platform and is reported to INSIGHT by the Client or discovered by INSIGHT, INSIGHT will assign a severity level to each Incident based on the Incident Classification Table below.
(b) Error Reporting and Response. If Client becomes aware of an Incident, Client will report the Incident to INSIGHT together with a reasonable description thereof and an assignment of a severity level. INSIGHT will take the following steps according to the Response Expectation Table below.
Step 1. INSIGHT will use commercially reasonable efforts to respond to the Client’s reported Incident as indicated in the Response Expectation Table below.
Step 2. INSIGHT will use commercially reasonable efforts to actively address the Incident as indicated in the Response Expectation Table below.
3. System Availability and Service Credits.
(a) Required Monthly System Availability. As part of the Platform, INSIGHT will use commercially reasonable efforts to ensure that during each month of the Term, the Platform will be available, accessible, and usable by the Client at a rate not less than a System Availability of 99.5%
(b) Calculation of Monthly System Availability. System Availability shall be calculated on a monthly basis by Client and will be expressed as a percentage and determined as follows:
(c) Service Credit. If INSIGHT fails to meet a System Availability of 99.5% during any month of the Term, the Client may request Service Credits as specified in the table below.