Definitions

 

Software: means the proprietary SplashBI software product(s) (Dashboards, Reports, Charts, Excel Connect, Mobile Application, Connectors, Pre-built content) provided in connection with this Agreement in object code form (or as otherwise specified in any related Ordering Document).  “Software” shall also include any Support and Maintenance Services releases provided to you under this Agreement.  Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”.

 

 

Affiliate: means each legal entity that is directly or indirectly controlled by you on or after the Effective Date or for so long as such entity remains directly or indirectly controlled by you (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership).

 

Agreement: means this License Agreement and any Ordering Document(s) and Statement(s) of Work between Splash BI and Customer that reference it.

 

Authorized User: means those uniquely identified individuals for whom the applicable license fees have been paid, as stated in the Ordering Document, who are authorized by you to install and/or use the functionality in the Software for any purpose regardless of whether those individuals are actively using the programs at any given time.  Licenses granted on an Authorized User basis may be reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of a single license between multiple users.

 

Instance: An instance is an installation of SplashBI on a server with a given port number. Multiple instances can be installed on a physical server on different port numbers.

 

Connector: A connector is a component of SplashBI that helps it to connect to the source system and extract the data. There are three types of connectors. Database, File Based and Cloud Based.

 

Users:

  1. Admin User: Users with this type of role has most comprehensive control over Software functionality including user administration, connection maintenance, configure system-wide settings, ERP Mapping, license administration, user permissions and more. This user can also schedule and monitor system maintenance jobs required for optimum performance of the software. Admin user can perform all the activities of a Developer User and of a User.
  2. Developer User. Users with a developer are able to perform advanced technical functions including (but not limited to) create new domains, connect to databases, import views/tables, establish joins, review Entity Relationship diagram, create new reports/visualizations, export reports/visualizations, copy reports/visualization, domain filters, manage LOVs, develop drill-downs, synchronize domains with database etc.
  3. User. Users are provided rich self-service functionality allowing them to develop powerful reports and visualizations without requiring intense technical know-how. Authorized users can run reports/visualizations, copy & save them, add/remove available columns, manage filters, create pivot tables, define sorting, drill down, change visual attributes in charts, choose chart types, schedule reports, distribute them, export to Excel and much more. Users cannot create net new reports but if they have permissions, they can copy existing reports and develop/modify/edit/save their copies without consuming Developer license.
  4. Mobile and Excel Connect User. These roles enable XLConnect and Mobile functionality for Software accounts. These are “add-on” roles and their underlying capabilities remain tied to the three primary roles (i.e. Administrator, Developer and User) as described above.

 

  1. GL Connect User runs FIN reporting using an Excel Plug-In to Create, Edit and Share reports. One-Button Refresh of multiple reports directly in Excel across many tabs. Accesses GL Only Data with automatic drilldowns to subledger details, ad hoc Reporting, Financial Statement Tool. Plus provides Journal Entry & Budget uploading features for actual vs Budget reports to replace Web ADI & FSG’s for Oracle EBS only
  2. SplashGL User runs FIN reporting using an Excel Plug-In to Create, Edit and Share Financial reports. One-Button Refresh of multiple reports directly in Excel across many tabs. Accesses GL Only Data with automatic drilldowns to subledger details, ad hoc Reporting, Financial Statement Tool for Oracle ERP Cloud only or Oracle EBS.

 

Pre-built Content/Analytics/Data Models: Pre-built content or Pre-built Analytics refers to the out of the box or seeded reports and dashboards that SplashBI offers for various data sources. Some of the pre-built analytics include pre-built

SplashBI data models where data is stored to analyze. Customer is not allowed to modify the seeded content, but can copy and make changes (filter, color, pivots, columns, charts, etc.)  to the format.

Key: In order to use the Software under this Agreement, you must activate your copy of the Software with the valid license key or activation code provided to you (“Product Key”) at the time of purchase and/or submit a uniquely identifiable user registration when prompted, in accordance with the scope of use and other terms specified  for  each type  of  Software, in the Documentation

SplashBI may ask to audit Customer User and License counts annually.  Once completed, SplashBI will issue a key for the software to operate year after year upon the payment of the renewal invoice which will be sent approximately 60 days prior to expiration.

User-Based  Server  License:    If  your  Server Software  license  is  designated  as  User-Based,  the count  of Authorized  Users  enabled  to  use  such Server  Software in all Production  and  Non-Production  Environments  must  not  exceed  the number of User licenses    purchased    on    the    applicable    Ordering Document(s).    For the avoidance of doubt, “User-Based” Server licenses   are   also   referred   to   in   the   Ordering   Documents or Documentation as “Web Client” Server licenses or “Interactor” Server licenses.

Core-Based  Server  License:  If  your  Server Software license is designated on the applicable Ordering Document as   Core-Based,   for   each   such   license   an   unlimited   number   of Authorized Users may use the Server Software (until Concurrency is reached), provided that the total number of Cores made available to each installation of the Server Software does not exceed the permitted number  of  Cores  identified  on  your  Ordering  Document.   When the Server Software is installed and distributed across multiple computers, all Cores made available to the Server Software from each computer count toward the total number of Cores licensed by you and identified on your Ordering Document. “Core” means the processor or execution core within a computer’s central processing unit, whether such Cores are virtual or physical. For purposes of Core-Based Server licenses, Authorized Users do not need to be uniquely identified.

Concurrent User/Concurrency: means the active number of users (Admin Users, Developer Users, Users, Mobile Users, Excel Connect Users) that are logged in at the same time within the SplashBI system.

Non-Production Environments:   You may use the Server Software  in  a  technical  environment  and  on  the  platforms  and configurations  specified  in  the  Documentation,  solely  for  internal development and testing in connection with your licensed Software, or for  disaster  recovery  purposes  (“Non-Production  Environment”). Your installation, activation or use of a copy of the Software in a Non- Production Environment is limited to the same number of Authorized Users and/or permitted number of Cores and/or computers as provided on the SplashBI Customer Order Form.  Your use of the Server Software in a Non- Production Environment may be concurrent with your use of the licensed Software in a Production Environment and such use is conditioned on you having an authorized license for the Software.  You are only entitled to two (2) Non-Production Environments under this Agreement.  Any additional licenses for Non-Production Environments, other than what is described in this Section, can be purchased by you and shall be subject to the additional terms and conditions contained in the applicable Ordering Document.

 

Production Environments.   As  it  relates  to  the  Server Software, your use of the Software for the purpose of creating, sharing, viewing  and/or  revising  visualizations  is  considered  use  within  a “Production Environment” and you are entitled to one (1) Production Environment for each Server Software license you purchase under this Agreement.   Your   use   of   the   Server   Software   in   a   Production Environment allows for a single Production Environment regardless of the fact that single Production Environment may consume all the Cores identified on your Ordering Document.

 

Deployment Type: SplashBI software can be deployed in the following manner:

 

On Premises:  SplashBI software is installed on premises in the customer environment that includes servers in its data centers, or its private cloud (AWS, Azure, RackSpace, etc.), or in Third Party hosted data centers.

 

Private Cloud (SplashBI): An environment created exclusively for the customer by SplashBI. This environment can be maintained by the customer or by SplashBI for an appropriate fee. This can be accessed only from customer worksite or publicly (via a URL) as desired by customers.

 

Public Cloud (SplashBI): A partitioned environment created for the customer by SplashBI which co-exists with

other customers.  This environment will be maintained by SplashBI for an appropriate fee. This can be accessed only publicly via a URL.

 

 

Customer Data: means data generated by you or your Authorized User and used by or imported into the Software, but excludes data generated by a Client Sublicensee unless such data is combined with your data or is relevant to your provision of services to such Client Sublicensee.

 

Delivery Date: means the date on which both the SplashBI Products specified in the relevant Ordering Document and the license key(s) for such Products are initially made available (via download or otherwise) to the Customer or to the authorized reseller as applicable.

 

Documentation: means any supporting product help and technical specifications documentation provided by SplashBI with the Software to you, as the same may be modified from time to time in the sole discretion of SplashBI.  Documentation is available upon the request of Customer at any time or upon Software download or service completion.  Customer’s use of the SplashBI products is subject to the terms of the documentation as if such documentation was attached to and made a part of this agreement.

 

Effective Date: The effective date shall be 15 days from contract execution date by which the initial Delivery of the Software and invoice to the customer shall take place.

 

License Term: means the Software license term specified on the applicable Ordering Document or by an Authorized Partner.  The License Term may be for a fixed term or a limited term or perpetual.

 

Ordering Document or Order Form: means any order on a SplashBI order form that references this Agreement.  Each Ordering Document which references this Agreement shall be deemed to be a part of this Agreement.

 

Party or Parties: means SplashBI and Customer, individually and collectively, as the case may be.

 

 

 

 

 

 

 

 

 

 

1.                    SOFTWARE, SERVICES AND SUPPORT

1.1                  Subject to the terms and conditions of this Agreement and payment of license fees under an Ordering Document, SplashBI grants to Customer, and Customer accepts, a personal, non-transferable, non-sublicensable, nonexclusive limited subscription license to access and use the Software and Services set forth on each SplashBI Order Form in accordance with the documentation supplied by SplashBI, only during the Term set forth on such SplashBI Order Form and solely for Customer’s internal business purposes, including its operations, strategy and decision making process, in accordance with the license scope and terms set forth in the Sales Order.  The Software and Services are subject to modification from time to time at SplashBI’s sole discretion, for any purpose deemed appropriate by SplashBI.  SplashBI will use reasonable efforts to give Customer prior written notice of any such modification

1.2                  If Splash BI is hosting the Software, SplashBI will undertake commercially reasonable efforts to make the Software and Services available twenty-four (24) hours a day, seven (7) days a week, excluding scheduled or emergency maintenance or downtime caused by matters beyond its reasonable control.  However, SplashBI does not warrant that Customer’s use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure or that it will be compatible with all of Customer’s equipment or software configuration or that the Software is designed to meet all Licensee’s business requirements,  Notwithstanding the foregoing, SplashBI reserves the right to suspend Customer’s

access to the Software and Services in the event Customer is in breach of this Agreement, including failure to pay any amounts due to SplashBI.

1.3                  Subject to the terms hereof, SplashBI will provide reasonable support to Customer for the Software and Services from Monday through Friday during SplashBI’s normal business hours and provision up to 5 Customer User ID’s on its Support Portal.   Customer will remain current with SplashBI version and release levels as SplashBI will support only the then current version and one prior.

1.4                  Custom reports developed by or converted for the Customer are not covered in SplashBI standard maintenance and support for same shall be charged at US $150.00 per hour.

1.5           The Discoverer Migration Utility from SplashBI, if included, is provided at no charge and does not guarantee 100% conversion of Customer workbooks.

 

1.6        Any service hours quoted will expire 12 months from execution of this contract unless otherwise agreed to in writing.

 

 

2.                    RESTRICTIONS AND RESPONSIBILITIES

2.1                  Access to the Software and Services may require the Customer to install certain other software applications.  Customer agrees to be bound by any end-user software agreements that govern the installation and use of such client software applications.

2.2                  Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to obtain, discover, receive, review or otherwise use or have access to the source code, object code or underlying structure, ideas or algorithms of the Software and Services or any documentation or data related to the Software and Services (or any part thereof) (“Software”) (except to the extent applicable laws specifically prohibit such restriction); modify, translate, or create derivative works based on the Software and Services; use the Software and Services for time sharing or service bureau purposes or for any purpose other than its own use for internal business purposes; or use the Software and Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation).  For the avoidance of doubt, Customer may not use the Software and Services in order to engage, directly or through any third party, in development of any product which is or may constitute a derivative work of the Software or may infringe on SplashBI’s intellectual property rights.

 

 

 

 

2.3                  Customer will cooperate with SplashBI in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as SplashBI may reasonably request.  Customer will also cooperate with SplashBI in establishing a password or other procedures for verifying that only designated employees of Customer have access to the Software and Services.

2.4                  Customer acknowledges and agrees that the Software and Services operates on or with applications operated by third parties (“Third Party Software”).  SplashBI is not responsible for the operation of any Third-Party Software nor the availability or operation of the Software and Services to the extent such availability and operation is dependent upon Third Party Software.  Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Software and for complying with any applicable terms or conditions thereof.  SplashBI does not make any representations or warranties with respect to Third Party Software or any third-party providers.  Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party’s terms and conditions.

2.5                  Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”).  Customer may change the individual designated as Primary Contact at any time by providing written notice to SplashBI.

2.6                  Customer hereby agrees to indemnify and hold harmless SplashBI against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any third-party claim or action that arises from an alleged violation of the foregoing.  Although SplashBI has no obligation to monitor the content provided by Customer or Customer’s use of the Software and Services, SplashBI may do so and may remove any such content or prohibit any use of the Software and Services it believes may be (or alleged to be) in violation of the foregoing.

2.7                  Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

2.8                  Customer further acknowledges and agrees that any Third Party software licenses (any database or application such as Microsoft Office, Oracle, SAP, PeopleSoft Java, Adobe, Salesforce, etc.) that are required for the operation of SplashBI are the obligation of the Customer to obtain.

2.9       Third-Party Code.

 

2.9.1 The  Software  may  contain  or  be provided with components which are licensed from third parties (“Third Party   Code”),   including   components   subject   to   the   terms   and conditions   of   “open   source”   software   licenses   (“Open   Source Software”).      Open   Source   Software   may   be   identified   in   the Documentation, or in a list of the Open Source Software provided to you upon your written request.  To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source  Software,  including,  without  limitation,  any  provisions governing access to source code, modification or reverse engineering.

 

2.9.2 The Software consumes certain services (Web Services, Extracts, Integrations, etc.) that may be allowed and available by the Source Software (including Open) for computing or providing results. In the event any such services are discontinued by the source application for any reason, SplashBI may provide other alternatives to provide similar outcomes, but is under no obligation to do so and will not incur any liability for failing to do so.

 

 

 

 

 

 

 

 

 

 

3.                    CONFIDENTIALITY

3.1                  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party).

3.2                  The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to  take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, SplashBI may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.

3.3                  Customer acknowledges that SplashBI does not wish to receive any Proprietary Information from Customer that is not necessary for SplashBI to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, SplashBI may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

3.4                  Each party will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by the other party prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary in connection with bona fide financing or acquisition due diligence. Neither party will use the other party’s name, logos, trademarks, or other marks without that party’s written consent.

 

 

4.                    INTELLECTUAL PROPERTY RIGHTS

4.1                  Except as expressly set forth herein, SplashBI alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software.  Customer may, at its discretion, provide feedback, suggestions, improvements, enhancements and/or feature requests to SplashBI with respect to its use of the Services (“Feedback”).  Customer shall and hereby does assign all right, title and interest in and to Feedback to SplashBI and SplashBI may use or modify the Feedback for any purpose, including developing and improving the SplashBI Software without any liability, restriction or payment to Customer.  Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.  Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal business analysis purposes only.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.

4.2                  SplashBI may obtain and process content/data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement.  Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content submitted to the Services and the intellectual property rights with respect to that Content.  If SplashBI receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), SplashBI may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify SplashBI from all liability, damages, settlements, attorneys’ fees and other costs and expenses in connection with any such Claim, as incurred.

 

 

 

4.3                  SplashBI will indemnify, defend and hold Customer harmless from and against any and all third party claims, liabilities, losses, damages and/or costs and expenses (including reasonable attorneys’ fees) which are paid or payable to an unaffiliated third party relating to any claim that the Services, as provided by SplashBI to Customer under this Agreement and used within the scope of this Agreement, violates, infringes or misappropriates any U.S. patent rights, copyright rights, trade secret rights or any other intellectual property or proprietary rights of such third parties; provided that Customer (a) promptly notifies SplashBI in writing of each such claim, (b) grants SplashBI the option to assume sole control of the defense and settlement of such claim, and (c) provides SplashBI, at SplashBI’s expense, with all assistance, information and authority reasonably required for the defense and settlement of such claim.  The foregoing obligations do not apply with respect to portions or components of the Software and/or Services (i) not created by SplashBI, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified by any party other than SplashBI or its agents, (iv) combined with other products, processes or materials not provided or approved by SplashBI, (v) where Customer continues using the Software and Services after being notified of modifications that are necessary, or (vi) where Customer’s use of the Software and Services is not strictly in accordance with this Agreement and all related documentation.  Customer will indemnify SplashBI from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from SplashBI’s indemnity obligation by the preceding sentence.

 

 

5.                    PAYMENT OF FEES

5.1                  Customer will pay SplashBI the applicable fees as set forth on the SplashBI Order Form (the “Fees”).  If Customer use of the Software and/or Services exceeds the users/connections/headcounts/content/services set forth on the SplashBI Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Software and/or Services Capacity, at the rate set forth on the SplashBI Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction.  All payments will be made in accordance with the Payment Schedule.  If not otherwise specified, payments will be due within thirty (30) days of invoice date.

5.2                  Unpaid Fees not subject to good-faith dispute are subject to a finance charge of the lower of 1.5% per month or the maximum amount permitted by law, plus all expenses of collection, including reasonable attorneys’ fees.  Fees under this Agreement are exclusive of all taxes, including national, state and local use, sales, value-added, property and similar taxes, if any.  Customer agrees to pay such taxes (excluding national, regional, or local taxes based on SplashBI’s net income) unless Customer has provided SplashBI with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to SplashBI on account thereof.

 

 

6.                    TERMINATION

6.1                  Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the SplashBI Order Form.

6.2                  In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.  SplashBI may terminate this Agreement for any reason or no reason upon sixty (60) days prior written notice to Customer.

6.3                  Upon termination or expiration of this Agreement, the rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately return anything Customer has obtained in connection with the Services, together with any and all documents, notes and other materials regarding the Services, to SplashBI, including, without limitation, all Confidential Information of SplashBI, and all copies and extracts of the foregoing.  The following sections will survive termination or expiration of this Agreement: Sections 2, 3, 4.1, 4.3, and 8-11, and any outstanding payment obligation.  To be clear, in the event of termination for any reason, SplashBI will not refund any portion of the fees paid by Customer to SplashBI and Customer will be liable for the fees for the entire Service Term.

 

7. CLIENT SOFTWARE SECURITY

SplashBI represents and warrants that it will not knowingly include, in any SplashBI software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.  If, at any time, SplashBI fails to comply with the warranty in this Section, Customer will promptly notify SplashBI in writing of any such noncompliance.  SplashBI will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.  If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.

8. WARRANTY DISCLAIMER

WITHOUT LIMITING SPLASHBI’S OBLIGATIONS UNDER SECTION 1.2, SPLASHBI SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT  SPLASH BI DOES NOT WARRANT THAT THE SPLASHBI PRODUCTS WILL BE ENTIRELY FREE FROM DEFECTS OR OPERATE UNINTERRUPTED OR ERROR FREE.

9.  LIMITATION OF LIABILITY

IN NO EVENT WILL SPLASHBI, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR LICENSORS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGE OF ANY KIND WHATSOEVER (HOWEVER ARISING) OR (II) FOR ANY DIRECT DAMAGES, WHICH WILL IN NO EVENT EXCEED (IN THE AGGREGATE) THE  FEES PAID BY CUSTOMER TO SPLASHBI ATTRIBUTABLE TO THE SPECIFIC PRODUCTS OR SERVICES GIVING RISE TO SUCH DAMAGES  IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.  U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  By using the Software and/or Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of a country subject to United States embargo.

 

11.  MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sub licensable by Customer except with SplashBI’s prior written consent.  SplashBI may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  The failure of either party to act with respect to a breach of this Agreement by the other party or others shall not constitute a waiver and shall not limit the non-breaching party’s rights with respect to such breach or any subsequent breaches.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SplashBI in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  SplashBI will not be liable for any loss resulting from a cause over which it does not have direct control.  This Agreement will be governed by the laws of the State of Georgia, U.S.A. without regard to its conflict of law’s provisions.  The federal and state courts sitting in Gwinnett County, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek immediate injunctive relief in any court of competent jurisdiction.

 

Splash Business Intelligence, Inc.:                                           CUSTOMER:

 

SIGNATURE: ________________________________                  SIGNATURE: _____________________________

NAME : _____________________________________                  NAME: ___________________________________

TITLE: _____________________________________                   TITLE: ___________________________________

DATE: ______________________________________                 DATE: ____________________________________

 

 

 

 

DEPENDING ON DEPLOYMENT OPTION – EITHER USE THE CUSTOMER HOSTING SECTION OR THE CLOUD HOSTING SECTION BELOW THIS AND DELETE THE ONE NOT NEEDED

 

CUSTOMER HOSTING PROVISIONS

The following will apply when Customer Hosting is elected on the SplashBI Order Form:

I.  The Customer server (and related or peripheral equipment and software) on which the SplashBI software is to be installed (“Equipment”) will not be used in any manner that would impair, harm or otherwise damage the software.  Customer will not transfer any such Equipment until all Software has been permanently removed.  Customer will maintain Equipment in good working order (including but not limited to backup, recovery, and reboot services as necessary).  Customer will have full responsibility for security of all Equipment (physical, electronic and otherwise) such that (except for use of the Service as expressly and unambiguously authorized in Sections 1 and 2 of this Agreement) no person or entity other than SplashBI will have any direct or indirect access to any Software. Customer will not transfer any such Equipment until all Software has been permanently removed

II.  Customer acknowledges and agrees that SplashBI will, with prior approval,  have access to Equipment (including but not limited to onsite access and electronic access) to engage in any activity or action relating to Software (including but not limited to maintenance and installation of Software) subject to Customer’s standard reasonable security procedures.

III.  SplashBI will have no obligation to insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or its employees, contractors, and agents.

IV.  Upon any termination, Customer will permit SplashBI to access the Equipment to remove all SplashBI property, including but not limited to Software.

V.  Customer will not allow any lien to attach to any Software, will not remove any notice SplashBI may apply to the Equipment indicating that the Software is not owned by Customer and will publicly file any documents requested by SplashBI to such effect.

 

CLOUD HOSTING PROVISIONS

  1. Instances – SplashBI will provide One Production and Two Non-Production Instances. These instances will be hosted on Oracle Cloud Infrastructure (OCI).
  2. Hosting Fees – Any additional hosting fees mentioned in the EULA will be charged for the duration of the agreed term.
  3. Services – As part of the Hosting Agreement following services will be provided:
  • Services Included:
    • System Access: Company shall provide SplashBI Application access (User Interface and Metadata) for the Licensee to setup purchased connectors from Company, build reports and dashboards thus enabling the users to perform day to day operations.
    • System Updates: As part of the System Maintenance, the Company shall be responsible for:
    • Infrastructure Updates: The Company will perform activities such as (but not limited to) patching of the operating system, data encryption, security updates to the instances.
    • Application updates: Company will support the initial implementation and subsequent “Updates” or “Upgrades” consisting of a new releases or versions of the SplashBI Products. Company will implement Patches, Updates and Upgrades in accordance with the Change Management Section set forth herein.
    • Backups: Company shall create and maintain a backup plan whereby Licensee Content is backed up. Company shall take a nightly electronic backup of the Licensee Content, as defined below, for the purpose of archival storage in the case of Disaster
    • Disaster Recovery:

The potential maximum time period of data loss is measured from the onset of the Disaster (“Recovery Point Objective”, or “RPO”), and the objective for the potential maximum period of time to restore production use of the Production Environment(s) as part of the services (“Recovery Time Objective”, or “RTO”), is measured from the declaration of a Disaster.

  • Recovery Time Objective: Company’s objective for the time to re-establish the services from a Production Environment at the Secondary Site is eight hours from the declaration of Disaster (“Recovery Time Objective”).
  • Recovery Point Objective: Company’s objective for the time to re-establish the services from a Production Environment at the Secondary Site is twenty-four hours or the last backup whichever is the least from the declaration of Disaster (“Recovery Point Objective”).
  • Data Source Connectivity: Company shall work with the Licensee or Licensee’s Vendor to establish connectivity between a data source present in Licensee Local Area Network/ Vendor’s Network and SplashBI Hosted Application. Company and Licensee/Licensee’s Vendor will be both responsible to make sure that this connectivity is available in accordance with System Availability section set forth herein.
  • Cloning: Licensee can request On-Demand clone of Production Environment to Non-Production Environment. Each request will be processed as per the agreed Support SLA.
  • Excluded Services:
    • Support of Client Desktops
    • Support or diagnosis of Local Area Network connectivity
  • Local Area Network device configuration such as proxy servers
  1. System Availability – Subject to the terms and conditions of this Agreement and subject to that OCI is available 24*7*365, Company shall use its best commercial efforts to provide the Cloud Hosting Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement
    • Downtime : Licensee agrees that from time to time the SplashBI may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company, including interruption or failure of telecommunications or digital transmission links, hostile network attacks, network congestion or other failures (collectively “Downtime’).
    • Advance Notice: Company shall provide five (5) business days’ advance notice to Licensee in the event of any scheduled Downtime and shall provide notice to Licensee of unscheduled Downtime as soon as reasonably possible.
  1. Change Management
  • For all Production Environments, Company will follow “Change Management Procedures” in completing changes in the Products or product release levels used in the Service and in implementing Patches and Upgrades (collectively “Change Events”).
  • Change Management Procedures will in all cases provide for the following:
    1. advance notification to the Licensee of the Change Event, its nature and expected timetable.
    2. pre-testing of changes in Company or Licensee non-Production testing environments.
    3. coordination of the implementation of the Change Event with the Licensee.
  • Product Version. Licensee will receive Updates Change Events made available by Company which shall be applied with 30 days of its General Availability at such a date determined solely by the Company.

 

 

 

 

 

 

 

EXHIBIT A

 

 

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ANY OTHER TERMS/CONDITIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Addendum A

Support Procedures

Client is responsible for activating their Support Portal accounts during implementation. An invitation will be emailed to each support contact with instructions.

 

MAINTENANCE AND SUPPORT SCOPE

  • Support Hours:

USA Monday to Friday 8:00 a.m. through 7:00 p.m. EST. After hours’ support is only available for Priority 1 issues where the business is severely impacted.

Europe/UK Monday to Friday  5.30am through 11.30pm on every day other than SplashBI observed holidays. At all other times, support is only available for Priority 1 issues where the business is severely impacted.

 

  • SplashBI observed holidays: All Public Holidays including New Year’s Day and Christmas Day & Day After Christmas on occasions when adjacent to a weekend.
  • Number of Licensee Support Contacts: 5
  • Support Contact Information:
    • Email: E-mail is automatically generated through SplashBI Support Portal. E-mail addresses for SplashBI assigned installer, trainers, and consultants will be provided to Licensee at the time of delivery of associated services.
    • Telephone: 866-363-1752.  Telephone numbers for SplashBI assigned installer, trainers, and consultants will be provided to Licensee at the time of delivery of associated services. After hours contact in case of P1 issues will be made to your designated support manager.
    • Web Portal: splashbi.com
    • Web Portal Procedure: The correct procedure for requesting Support on a product issue will be handled using the Support Portal. The Support Portal is accessible through the listed URL and also through a link on the SplashBI corporate web site. SplashBI can only accept formal requests for assistance on a product support matter through the SplashBI Support Portal.  Direct forms of communications to SplashBI personnel by Licensee personnel, such as phone calls and emails, are not precluded.  However, these direct forms of communication do not constitute the formal logging of a Licensee Support Request. SplashBI will provide Support Portal usernames and passwords for all applicable Licensee named accounts upon request of Licensee. 

 

  • SplashBI and Licensee will determine, in conjunction, the priority level to be assigned to a Support Request.
  • SplashBI will provide the following Support services:
  • Error corrections and Updates to the SplashBI products and standard content.  Any custom reports developed by SplashBI or the client are not included within the support services and will be addressed via a consulting engagement.
  • Internet browser compatibility.

(iii) SplashBI shall perform maintenance and Support in a professional and workmanlike manner consistent with industry standards and in accordance with the Response and Resolution Schedule below.  In the case SplashBI is only able to provide a temporary workaround within the Resolution timeframe as shown below, SplashBI shall make every reasonable effort to follow up with a permanent solution no more than two (2) weeks from the time the support request was submitted by Licensee. Licensee and SplashBI acknowledge that there may be occasions where a permanent solution may be embedded in a scheduled release pack, delivery of which may extend beyond the two week duration.  SplashBI will communicate any such exceptions to Licensee on a timely basis.    Where technically feasible and mutually acceptable, a permanent solution may be “backported” to Licensee.

 

Support tickets need to be submitted for all errors and will be prioritized as follows:

 

Priority 1    Critical Impact: System or application is down; little to no functionality; no workaround; many services affected; many users affected.

Response:  One (1) hour Response

 

Priority 2    Normal Impact:  Basic functionality with some restrictions; workaround available; one or more users affected.

Response:  Eight Hour (8) hour response

 

Priority 3    Low Impact:  Minor problem; functionality unaffected; cosmetic or an annoyance, potential enhancement to product.

Response:  Twenty-four (24) hour response