Hanu Insight v2.0 - Terms of Use

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

This agreement is between Hanu Software Solutions, Inc., a New Jersey corporation (Hanu), and the customer agreeing to these terms (Customer).

1. SOFTWARE SERVICE. This agreement provides Customer access to and usage of an Internet based IT governance and financial management solution which is designed to operate on a Customer provided Azure virtual machine (VM), as further specified on: www.hanuinsight.com (Service).

2. USE OF SERVICE.

a. Customer Owned Data. All data uploaded by Customer remains the property of Customer, as between Hanu and Customer (Customer Data). Customer grants Hanu the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data to the extent allowed by the Service.

b. Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

c. Customer Responsibilities. Customer (i) is responsible for purchasing and providing continuous access to the Azure VM on which the Hanu software will operate; (ii) must keep its passwords secure and confidential; (iii) is solely responsible for Customer Data and all activity in its account in the Service; (iv) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Hanu promptly of any such unauthorized access; and (v) may use the Service only in accordance with the Service’s technical documentation and applicable law.

d. Hanu Support. Hanu Insight Customer Support Portal (Support) which is located at http://hanuinsight.kayako.com , and can be used to submit any support related tickets.

e. Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for the time period specified by Hanu when Customer signed up for the trial. The Service is provided AS IS, with no warranty during this time period. All Customer data will be deleted after the trial period.

3. SERVICE LEVEL AGREEMENT & WARRANTY.

a. Warranty. Hanu warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, force majeure, Microsoft Azure outages, and outages that result from any Customer or third party technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.

Availability Warranty Credit

99% 3% of monthly fee for each full hour of an outage (beyond the warranty)

Maximum amount of the credit is 100% of the fee for such month.

b. LIMITED REMEDY. Customer’s exclusive remedy and Hanu’ sole obligation for its failure to meet the warranty in 3(a) above will be for Hanu to provide a credit for the applicable month as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies Hanu of such breach within 30 days of the end of that month.

c. DISCLAIMER. HANU DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE HANU TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, HANU DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

4. PAYMENT. Customer must pay all software fees as specified on the Azure marketplace. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes.

• Hanu Promise: If Customer reviews on a monthly basis and selects, in its sole discretion, to activate, deactivate or change the size of a virtual machine (VM) during a year of the Service, based on the recommendations of the Underutilized VM Report within the Service, then Customer’s cost savings should pay for the cost of the Service for that year. If it does not, then Hanu will refund the full amount paid for the Service for that year.

o To make a request for a refund under this refund program, Customer must provide (1) a screen print of the Utilization Report for each project and for each month during the applicable year, and (2) a detailed explanation of the reasons why Customer did not follow the recommendations.

o Customer must make this request for a refund to Hanu in writing (including email) within 30 days of the end of the applicable year to be entitled to make a claim for a refund under this refund program during that year.

o Hanu will review the Customer provided information and its compliance with the refund program. Hanu’s decision regarding a refund is final. This refund program is terminable at any time by Hanu upon electronic notice, and is void where prohibited.

o Customer must make its own decision regarding activating, deactivating or size changes, of underutilized VMs, and must NOT solely rely on the recommendations contained in the underutilized report. The recommendations are created by software, and may do not take into account Customer specific situations regarding VM usage. Hanu is not liable for any damages or losses arising from Customer’s selections regarding underutilized VMs.

5. MUTUAL CONFIDENTIALITY.

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Hanu’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

6. HANU PROPERTY.

a. Reservation of Rights. The software, workflow processes, designs, know-how, and other technologies provided by Hanu as part of the Service are the proprietary property of Hanu and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Hanu. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Hanu reserves all rights unless expressly granted in this agreement.

b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

c. Billing Circumvention. Customer may not perform any operation to circumvent any billing mechanism, including, but not limited to, (i) start/stop the virtual machine (VM) on a schedule; (ii) manually start/stop the virtual machine (VM) or (iii) remove and reinstall the Product repeatedly.

d. Aggregate Data. During and after the term of this agreement, Hanu may use Customer Data for purposes of enhancing the Service, aggregated statistical analysis, Microsoft reporting, technical support and other business purposes.

7. TERM AND TERMINATION.

a. Term. This agreement continues until customer terminates the Azure VM on which Insight software is running.

b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

c. Return Hanu Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Hanu for any unpaid amounts, and destroy or return all property of Hanu. Upon Hanu’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

d. Suspension for Violations of Law. Hanu may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. Hanu will attempt to contact Customer in advance.

8. LIABILITY LIMIT.

a. EXCLUSION OF INDIRECT DAMAGES. Hanu is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits or lost anticipated cost savings), even if it knows of the possibility of such damage or loss.

b. TOTAL LIMIT ON LIABILITY. Hanu’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12 month period prior to the event that gave rise to the liability.

9. INDEMNITY.

a. Defense of Third Party Claims. Hanu will defend or settle any third party claim against Customer to the extent that such claim alleges that Hanu technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Hanu of the claim in writing, cooperates with Hanu in the defense, and allows Hanu to solely control the defense or settlement of the claim. Costs. Hanu will pay infringement claim defense costs incurred as part of its obligations above, and Hanu negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Hanu may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Hanu determines that none of these are reasonably available, then Hanu may terminate the Service and refund any prepaid and unused fees. Exclusions. Hanu has no obligation for any claim arising from: Hanu’s compliance with Customer’s specifications; A combination of the Service with other technology where the infringement would not occur but for the combination; Use of Customer Data; or Technology not provided by Hanu. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND HANU’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

b. By Customer. Other than as provided in 9(a) above, if any third-party brings a claim against Hanu related to Customer’s use of the Service, Customer must defend, indemnify and hold Hanu harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

10. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of New Jersey (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Mercer County, New Jersey, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. OTHER TERMS.

a. Entire Agreement and Changes. This agreement and the order placed through Azure marketplace constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.

b. Reference. Hanu may use Customer’s name and logo in its website, marketing communications and materials, in accordance with Customer’s trademark guidelines and policies.

c. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.

d. Independent Contractors. The parties are independent contractors with respect to each other.

e. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

f. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

g. No Additional Terms. Hanu rejects additional or conflicting terms of any Customer form-purchasing document.

h. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.