InterSystems Subscription Agreement
InterSystems Subscription Agreement
- This Agreement is between the InterSystems Corporation (“ISC’) and the user (“you”) that has entered into a Master Software License, Maintenance and Services Agreement (“MSA”) with PowerSchool Group LLC, one of ISC’s Application Providers (‘PowerSchool” or “AP”) for certain services (“AP Services”) and software (“AP Software).
- Upon the execution of this Agreement (the “Effective Date”), ISC shall grant to you a nontransferable and nonexclusive license to use the Ensemble C1, Multi-Server, Platform Specific software (referred to in the MSA as “[Intergr8]”) (“Licensed Software”), internally solely in the conduct of your business (the “License”) during the Term. The term hereof (the “Term”) shall begin on the Effective Date and shall be conterminous with the term of the applicable Order Form to the MSA related to the Licensed Software. Any services provided by ISC (“Services”) shall be provided in accordance with the terms and conditions contained in the Price List in effect on the date such Services are invoiced. You may only use the Licensed Software and Services in conjunction with the AP Software. ISC may, at its discretion, subcontract the performance of Services to the AP or any other third party.
- ISC hereby warrants to you that (i) the Licensed Software does not infringe on any patent that has been issued prior to the Effective Date, (ii) ISC has the right to license the Licensed Software to you pursuant to the terms hereof, (iii) the Licensed Software will operate substantially in accordance with ISC’s documentation relating thereto for the earlier of one year following the Effective Date or the Term, and (iv) all Services shall be performed in a manner consistent with industry standards. The foregoing warranties are conditioned upon the use of the Licensed Software strictly in accordance with ISC’s documentation and instructions, and the absence of any misuse, damage, alteration or modification thereof. ISC SHALL NOT BE DEEMED TO HAVE MADE ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO YOU AS TO THE CONDITION, MERCHANTABILITY, TITLE, DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE OF THE LICENSED SOFTWARE OR Your exclusive remedy for a breach of warranties (ii), (iii) and (iv) above shall be for ISC to use reasonable efforts to repair, replace or re-perform any non-conforming Licensed Software or Services, as applicable. In the event of a breach of warranty (i) above your exclusive remedy shall be ISC’s (a) modification of the Licensed Software, (b) procuring a license for you to use the Licensed Software or (c) termination of your License, at ISC’s sole discretion.
- ISC’s liability to you shall in no event exceed the portion of the fees paid by you to the AP in conjunction with the MSA and further received by ISC in respect of the specific Licensed Software or the fees paid to ISC for Services on account of which such liability In no event shall ISC be liable to you for any special, incidental, exemplary, indirect or consequential damages or lost profits.
- Either party may terminate this Agreement with 10 days written notice upon the other party’s breach. In addition, you may terminate this Agreement upon 30 days written notice if ISC discontinues support for the Platform on which the Licensed Software Operates. You shall be liable for all fees relating to Licensed Software or Services provided prior to termination, and Sections 4, 5, 6, 7 and 8 hereof shall survive termination or expiration of this Agreement. Your rights to use the Licensed Software cease upon termination or expiration of this Agreement.
- The Licensed Software and related documentation are and shall remain the sole property of ISC. You may make one copy of the Licensed Software for backup purposes only. You agree not to (i) decompile, disassemble, or reverse engineer the Licensed Software or (ii) disclose to others the Licensed Software or any data or information relating to the Licensed Software. Unless the Licensed Software is hosted by the AP, you agree to allow ISC or its representatives to audit your use of the Licensed Software upon five (5) days’ notice by ISC. You agree to provide access to your premises and otherwise cooperate with ISC in such audit provided that such ISC personnel or its representative shall comply with your reasonable security procedures and site policies. Such audit shall not occur more than once in any twelve (12) month, unless ISC has good cause to request additional audits, and shall be performed in a manner not to disrupt your business and operations and will respect your confidentiality.
- Except as otherwise permitted under this Agreement, the party receiving any Confidential Information (“Recipient”) of the other party (“Discloser”) will not knowingly disclose to any third party, or make any use of the Discloser’s Confidential Information. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information of equal importance. The non-disclosure and non-use obligations that this Agreement imposes on You and on ISC will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Recipient’s receipt of that item; However, Your obligations to maintain both the Licensed Software and any software provided with the Licensed Software as confidential will survive until that Licensed Software no longer qualifies as “Confidential Information” under this Agreement. “Confidential Information” shall mean means Your information that You maintain as “confidential,” or ISC’s Confidential Information that ISC maintain as “Confidential.” For example, Our Confidential Information includes the Licensed Software, all software provided with the Licensed Software, and algorithms, methods, techniques and processes revealed by the source code of the Licensed Software and any software provided with the Licensed Software. Your Confidential Information includes student and employee records and data. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; or (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; provided however that notwithstanding (i) – (iii), any personally identifiable information shall always be Confidential Information.
- This Agreement shall be governed by and construed in accordance with the laws of, and the parties agree to submit to exclusive jurisdiction of the state of Massachusetts, USA.
- You agree to comply with all applicable laws, including, but not limited to: U.S. export control or similar laws with respect to the distribution of the Licensed Software, Services and technical data; the US Foreign Corrupt Practices Act and any other anti-corruption laws; and applicable data protection laws. The English version of this Agreement shall control unless otherwise required by local law.
- This Agreement, including the associated Product Terms, in effect as of the date of invoice of any fees for Licensed Software and/or Services constitute the entire agreement (collectively, the “Agreement”) between you and ISC relating to the subject matter hereof and supersedes any prior understandings between us as well as any purchase orders or similar documents that may be submitted to ISC. The terms of the Price List shall supersede any inconsistent terms contained herein. ISC shall have the right to transfer or assign this Agreement without notice. This Agreement may only be modified or amended by a writing signed by both parties.