Get a demo
Select the type of demo you'd like to experience with Indico Data.
Select the type of demo you'd like to experience with Indico Data.
INDICO DATA SOLUTIONS INC
ENTERPRISE LICENSE AGREEMENT
This Enterprise License Agreement (the “Agreement”) is made as of <DATE> (the “Effective Date”) and is between <NAME>, (“Customer”) and Indico Data Solutions INC, 186 South Street, Boston, #400, MA 02111 (“Indico”). Customer will deploy Indico’s software (the “Software”) on Customer’s own computing environment and/or via access to Indico’s proprietary application programming interfaces (the “Service”) for the duration of each applicable Statement of Work or Subscription Order Form, upon the terms and conditions set forth herein.
1. LICENSE AND USE OF THE SOFTWARE AND SERVICE
1.1 License. Subject to the terms of this Agreement, Indico hereby grants Customer a non-exclusive, world-wide, personal, non-transferable, except as provided herein, non-sublicensable right to access, implement, use the Software and make calls to the Service included in Exhibit A, during the term of each applicable Statement of Work or Subscription Order Form.
1.2 Restrictions. Customer agrees that it will not (and will not permit any third party to) directly or indirectly: (a) resell, rent, lease, loan, or otherwise distribute, transfer or make available the Software or Service or any part thereof to any third party; (b) create an API client that functions substantially the same as the Service; (c) modify, adapt, alter, translate, or create derivative works of the Service; (d) reverse engineer, decompile, decode, or disassemble the Software, Service or any part thereof; (e) misrepresent the source or ownership of the Software or Service or remove, obscure, or alter any copyright, trademark or other proprietary rights notices, falsify or delete any author attributions, legal notices or other labels of the origin or source of the Software or Service; (f) interfere with or disrupt the Software or Service; or (g) use the Software, Indico or Service in any manner that is not in compliance with all applicable laws or would result in Indico or any of its affiliates failing to be in compliance with all applicable laws. The Software shall be kept and used in conformance with the intended purposes and application hereunder to which both parties have agreed. Customer agrees to keep Indico informed at all times as to the location of the Software. Customer agrees to provide a site, all third party software, and all other elements necessary to operate the Software in conformance with Indico’s standard requirements.
1.3 User Feedback. Indico desires to continue to improve the Software and Service. For purposes of this Agreement, “User Feedback” means collectively, any comments, suggestions, recommendations, or proposed corrections related to the Software or Service from any individual that has access to the Software or Service. Customer agrees that Indico will have the right to make any and all uses of the User Feedback, including but not limited to using and incorporating the User Feedback into the Software or Service or with any of our other products and services.
1.4 Compliance. Indico reserves the sole right and discretion to determine whether Customer’s use of the Software and Service is in compliance with this Agreement, including but not limited to, upon reasonable notice and during standard business hours, conducting an audit of Customer’s use of the Software and Service. Additionally, Indico reserves the right to take any action with respect to the Software and the Service, including without limitation the curtailing Customer’s use of the Software and Service: (a) if required to do so by law or in the good faith belief that such action is necessary to conform to the edicts of the law or comply with legal process served on us; (b) to protect and defend the rights or property of Indico; (c) to act in urgent circumstances to protect the security or safety of any individual;
1.5 Outsourcing. During the term of this Agreement, Customer shall have the right to temporarily sublicense, sublease, assign, or otherwise transfer to one or more third parties any or all of the license rights granted to Customer hereunder, provided, however that any such sublicense, sublease, assignment, or other transfer shall be only for the use by such third party to perform information processing or implementation services for Customer.
1.6 Onboarding Services. In addition to the license of the Software and the Service, Customer may elect and Indico agrees to provide limited onboarding services to assist with the implementation of the solution. Specific terms of service are included in Onboarding Statement of Work.
1.7 Consulting Services. In addition to the license of the Software and the Service, Customer may elect and Indico agrees to provide limited consulting services to modify and/or customize and/or enhance the Software or Service, and/or conduct additional proof of concepts during the term of this Agreement. If elected by Customer, specific terms of any consulting services are included in Consulting Statements of Work entered into between Customer and Indico.
2. PAYMENT.
2.1 Subscription Fees. The license to the Software and Service are made available for the applicable fees (the “Fees”) which are set forth on Exhibit A.
2.2 Onboarding Fees. Onboarding services, if elected by Customer, will be billed by the terms set forth in Onboarding Statement of Work.
2.3 Consulting Fees. Consulting services, if elected by Customer, will be billed by the terms set forth in the Consulting Services Statement of Work.
2.4 No Refunds. All Fees are non-refundable except if the Agreement is terminated by Customer for Indico’s breach of the Agreement, as set forth in Section 3.
3. TERM; TERMINATION; SUSPENSION.
This Agreement shall remain in effect for the Term as defined in the attached Subscription Order Form or Statement of Work. Notwithstanding the foregoing, either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of any material breach by such other party, unless such breach is cured during such notice period. In the event of any such early termination by Customer, Indico will promptly refund a prorated portion of Customer’s Fees paid for the current Term based on the number of days remaining in the Term. Upon the termination of this Agreement for any reason, Customer will immediately cease any and all use of the Software and Service and return or delete all copies and instances of Software and any components thereof (in tangible or intangible format) and upon Indico’s request, certify such return and deletion.
4. UPDATES & MAINTENANCE.
Indico may, in its sole discretion, update or modify the Service or Software for any reason, including for purposes of improving the performance and features of the Service or Software, provided that no such update or modification shall materially degrade the functionality of the Service of Software. Indico will provide notice to Customer regarding the availability of updated versions of the Software as well as summary of updates, and Customer, at its sole discretion, may elect to install the updated Software.
5. CONFIDENTIALITY AND DATA SECURITY.
All technical and non-technical information concerning or related to the Software, and Service or any part thereof, including any source code, documentation, product roadmaps, business and marketing plans, and any information related to the foregoing constitutes the confidential information and property of Indico (“Indico Confidential Information”). For purposes of this Agreement, “Customer Confidential Information” shall mean all information, data or other materials disclosed or made available by or on behalf of Customer to Indico, regardless of the manner, medium or form in which it is communicated or maintained, and regardless of whether the same is owned by Customer or a third party. Customer Confidential Information includes all Customer Data. Confidential Information shall not include information that: (i) can be clearly demonstrated to be generally known or available to the public prior to the Effective Date, or becomes so after the Effective Date through no act or omission on the receiving party; (ii) was in the possession of or rightfully known by the receiving party on a non-confidential basis prior to its disclosure under this Agreement, or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, as evidenced by the receiving party’s written records, provided that the source of such information was not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality to any person with respect to such material; or (iii) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, in each case as evidenced by Supplier’s written records. Both parties agree to (i) use the other party’s Confidential Information only in connection with fulfilling its rights and obligations under this Agreement; (ii) hold the other party’s Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with Customer’s protection of its own confidential information but not less than reasonable care, (iii) not disclose the other party’s Confidential Information except for disclosures to employees, agents, auditors and representatives who have a bona fide need to know the Confidential Information and who have entered into written confidentiality obligations no less stringent than those contained in this Agreement. Both parties agree that any unauthorized disclosure of the other party’s Confidential Information would cause the other irreparable harm, and that in the event of any breach or threatened breach of the above confidentiality obligations, the other party shall be entitled to seek equitable relief in addition to any other remedy available to us at law or in equity. Both parties shall be responsible for any breach of confidentiality obligations hereunder by such party’s agents, employees or representatives. For the sake of clarity, Customer affirms that all components of the Software and Services and any intellectual property related thereto are Confidential Information of Indico.
In the event Indico receives a request or demand to disclose all or any part of the Customer Confidential Information pursuant to the terms of a valid subpoena or order issued by a court of competent jurisdiction, Indico shall promptly notify Customer in writing of such subpoena or order and enclose a copy therewith, so that Customer may seek a protective order or other appropriate relief. Indico agrees to cooperate with Customer in connection with Customer’s efforts to obtain such protective order or relief. In the event Customer is unable to obtain such protective order or relief, Indico may disclose Customer Confidential Information pursuant to the subpoena or order without liability under this Agreement, provided Indico shall (i) disclose only that portion of the Customer Confidential Information that, in the opinion of Customer’s counsel, is legally required to be disclosed, and (ii) use commercially reasonable efforts to obtain assurance that such Customer Confidential Information will continue to be treated as confidential.
Upon the written request of Customer, Indico shall promptly return to Customer or destroy all or any part of the Customer Confidential Information. Upon such return or destruction, Indico shall deliver to Customer a certificate signed by an authorized representative of Indico, in a form satisfactory to Customer, certifying that the Customer Confidential Information specified in the request has been returned or destroyed. Notwithstanding the foregoing, Indico shall be permitted to (i) retain Customer Confidential Information in archival storage in accordance with its internal data retention policies (but only to the extent such retention is otherwise permitted by applicable law), and (ii) retain copies of Customer Confidential Information to the extent necessary to comply with applicable legal and regulatory requirements.
The breach or threatened breach of any obligation or duty set forth in this Section will cause immediate and irreparable harm to the non-breaching party and an adequate remedy at law for such harm may not exist. Accordingly, in the event of such breach or threatened breach, the non-breaching party shall have the right to seek specific performance by, or obtain injunctive or other equitable relief against, the breaching party as a remedy for any such breach or threatened breach, without the necessity of proof of actual damage or loss and without the necessity of posting any surety or bond. The exercise by a party of any right or remedy available under this Section shall not preclude such party from exercising any other right or remedy to which it is entitled in law, equity or otherwise.
6. OWNERSHIP.
Indico shall own and retain all right, title, and interest in and to the Software and Service, and Indico’s Confidential Information, including all intellectual property rights contained therein. Customer shall not remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or contained within the Software or Service, or any copies thereof. Except for the express licenses granted in Section 1.1, no other licenses are granted by us hereunder whether by implication, estoppel or otherwise, and Indico hereby reserves all rights not expressly granted herein. Customer retains ownership of all intellectual property rights in any Customer Data submitted by it in the course of using the Software or Service. Indico expressly disclaims ownership over any Customer Data. This Agreement does not grant Indico any licenses or rights to any Customer Data except for the limited rights needed for Indico to provide Services to Customer. If Customer provides Indico with any ideas, suggestions or recommendations regarding the Software or Service (“Input”), Indico shall be free to retain, use and incorporate such Input into Indico products and/or services, without payment of royalties or other consideration to Customer.
7. WARRANTIES; DISCLAIMER.
Indico represents and warrants that the Services and Software shall not violate or any way infringe upon any patent, copyright, trade secret, trademark, service mark, trade name or other intellectual property right of any third party. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE SET FORTH HEREIN, INDICO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM INDICO OR THROUGH OR FROM THE SOFTWARE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. INDEMNIFICATION.
Each party (each, an “Indemnifying Party”) agrees to defend, indemnify and hold the other party, including its affiliates, and all of their respective officers, directors, agents and employees (each, an “Indemnitee”), harmless from and against any and all claims, demands, liabilities, losses, damages, actions, judgments, costs, expenses, fines and reasonable attorneys’ fees (collectively, “Claims”) asserted by a third party against any Indemnitee to the extent arising out of, related to or in connection with: (A) any infringement or misappropriation of any patent, copyright, trade secret, trademark, service mark, trade name, proprietary information or other intellectual property rights by the Indemnifying Party; (B) the Indemnifying Party’s grossly negligent acts, omissions and/or willful misconduct; or (C) the death or bodily injury of any agent, employee, subcontractor, customer, business invitee or business visitor of the Indemnifying Party, except to the extent caused by the other party;
Any Indemnitee seeking indemnification for a Claim made by a third party under this Section shall give prompt written notice to the Indemnifying Party of such Claim; provided, however, the failure by an Indemnitee to give such notice shall not relieve the Indemnifying Party of its obligations under this Section, except to the extent that the Indemnifying Party is materially prejudiced as a result of such failure. In addition, the Indemnitee shall allow the Indemnifying Party to direct the defense and settlement of any such Claim, with counsel of the Indemnifying Party’s choosing, and shall provide the Indemnifying Party, at the Indemnifying Party’s expense, with such information and assistance as is reasonably necessary for the defense and settlement of the Claim. The Indemnifying Party shall not be liable for any settlement of an action effected without its written consent (which consent shall not be unreasonably withheld or delayed), nor shall the Indemnifying Party settle any such action that affects the Indemnitee’s rights or interests without the written consent of the Indemnitee. The Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee a release from all liability with respect to the Claim.
In the event that the Software or Service are found to have infringed on a third party’s intellectual property rights and Customer is enjoined from using the Software or Service, Licensor, at its expense, may either modify the Software or Service, as applicable, so that it becomes non-infringing or provide a replacement acceptable to Customer.
9. LIMITATION OF LIABILITY.
THE SOFTWARE AND SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT FOR DAMAGES ARISING OUR OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES AND EACH OF THEIR RESPECTIVE SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SOFTWARE OR SERVICE OR CONTENT, INCLUDING ANY LOSS OF REVENUE, BUSINESS OPPORTUNITIES OR DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT BE LIMITED TO: CONTRACT, TORT, COMMON LAW, OR STATUTORY), WHETHER OR NOT THE OTHER PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES. EXCEPT FOR DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND DAMAGES ARISING OUT OF INDICO’S BREACH OF SECTION 5 (CONFIDENTIALITY AND DATA SECURITY), AND RELATED INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE THREE TIMES (3X) TOTAL AMOUNTS PAID OR PAYABLE FOR THE SOFTWARE OR SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10. GENERAL.
10.1 Relationship of the Parties. The parties acknowledge and agree that they are operating as independent contractors and not as partners, agents or joint venturers. Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. Indico reserves the right to provide the Software and Service to other companies, partners, or individuals, in its sole discretion.
10.2 Marketing and Promotional Use. During the Term, Customer may promote its use of the Software or Service, so long as it does so truthfully. Customer agrees to allow Indico to display Customer logo on its website and promotional materials, and to work with Indico on a mutually acceptable press release describing Customer’s licensing of Indico services. The Parties agree that no specific details of the commercial relationship between the parties will be shared without prior mutual consent. Indico will not provide Customer’s name to current or prospective customers as a reference without first receiving prior approval from Customer for each customer reference.
10.3 Assignment. Neither party may assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party of which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without the other party's consent to: (i) any entity which controls, or is controlled by, or is under common control with the assigning party; (ii) any entity resulting from any merger or consolidation with the assigning party; or (iii) any person or entity that acquires a business unit or substantially all of the assets of the assigning party; as long as such party is not in direct competition with the other.
10.4 Force Majeure. Customer understands and agrees that Indico will not be liable for any delay or failure to perform hereunder due to circumstances beyond its reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), Internet or other service disruptions involving hardware, software or power systems not within Indico’s possession or reasonable control, and denial of service attacks.
10.5 Governing Law; Venue; Waiver of Jury Trial. This Agreement will be governed and construed under the laws of the State of New York without regard to conflicts of law provisions. The parties agree that any suit or proceeding arising out of or relating to this Agreement will be brought in the federal and/or state courts, as applicable, in New York, New York, and each party irrevocably submits to the jurisdiction and venue of such courts. Notwithstanding this, the parties will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
10.6 Waiver. No provision of this Agreement will be waived by any act, omission or knowledge of Indico or Indico’s agents or employees except specifically in a writing signed by Indico.
10.7 Survival. Sections 1.3 and 3 through 10 will survive termination of this Agreement or any discontinuation of the offering of the Service or any part thereof.
10.8 Severability. If any provision or part of a provision in the Agreement is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in the Agreement will not be affected or impaired.
10.9 Entire Agreement. This Agreement, together with the Exhibits hereto, constitutes the whole legal agreement between the parties in connection with Customer’s use of the Software or Service, and governs such use. This Agreement completely replaces and supersedes any prior agreements between the parties, whether written or oral, in connection with the subject matter hereof. Except as otherwise expressly set forth herein, any modification of or changes to this Agreement must be in writing signed by each party hereto. In the event of a conflict between this Agreement and any Statement of Work or Subscription Order Form, this Agreement will control unless the Statement of Work or Subscription Order Form specifically states that the parties intend to modify a specific section of this Agreement.
11. INSURANCE.
Indico, at its sole cost and expense, shall maintain adequate insurance coverage for itself and all Indico personnel to protect Customer from any losses that arise out of the performance of the Services or other obligations under this Agreement. Such insurance shall include, at a minimum, the following: (i) commercial general liability (including, without limitation, coverage for contractual liability assumed by Indico under this Agreement, premises-operations, completed operations-products and independent contractors) in an amount not less than $2,000,000 per occurrence and $2,000,000 in the aggregate (and which shall include an “aggregate by project” and/or “aggregate by location” endorsement, as applicable); (ii) statutory workers’ compensation insurance or equivalent as prescribed by applicable law; (iii) comprehensive automobile liability covering all vehicles that Indico owns, hires or leases in an amount not less than $1,000,000 (combined single limit for bodily injury and property damage), or in such greater amount as may be required by the laws applicable to Indico in the jurisdiction where the Services are provided; (iv) errors and omissions (professional liability) insurance in the amount of at least $5,000,000 per occurrence; (v) cyber risk liability in an amount not less than $5,000,000; and (vi) umbrella coverage in the amount of $5,000,000 per occurrence in excess of the insurance coverage described above. Indico shall name Customer as an “Additional Insured” on all general liability and automobile liability insurance coverage and any other liability insurance coverage maintained, or which should be maintained, by Indico for which an “Additional Insured” endorsement is available.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
INDICO DATA SOLUTIONS INC
By: __________________________
Thomas R. Wilde
CEO
JLL
By: __________________________
Name:________________________
Title:__________________________
Date:__________________
Exhibit A – Subscription Order #1
Exhibit B – Service Level Agreement
Incident Class |
Definition |
Response Time |
Level I |
Services unavailable to all Customer End Users |
Within 1 hour |
Level II |
Serious performance degradation for all Customer End Users |
Within 4 hours |
Level III |
System defect causing impact to system usability or performance to one or more Customer End Users |
Within 24 hours |
Level IV |
Bug or defect causing occasional impact to one or more Customer End User |
With 10 business days |
Indico will use commercially reasonable efforts to make the Services available at the Target Reliability (as defined below). In the event Indico does not meet the Target Reliability in a given calendar month (“Monthly Uptime Percentage”), Customer will be eligible to receive a Service Credit as described below.
The following capitalized terms shall be given the meaning set forth below:
For a calendar month where the Monthly Uptime Percentage was below the target, Indico will credit your account a percentage of the subscription fees allocable to that month, as defined by this table:
|
MONTHLY UPTIME PERCENTAGE |
MONTHLY SERVICE CREDIT |
|
<99.95% |
10% |
|
<99.00% |
50% |
|
<95.00% |
100% |
In the case of annual subscriptions, the Service Credit shall be calculated by dividing the subscription fees described in the Statement of Work or Subscription Order Form by 12 and then applying the Service Credit percentage as described above.
To apply for a Service Credit, Customer must notify Indico of any failure to meet the Monthly Uptime Percentage target within thirty (30) days of the month in which the Unavailable Time occurred. Such notice shall be delivered via email to the Indico Customer Success Team at getsupport@indicodata.ai). Customer shall provide Indico with software logs from the Services at Indico’s request to diagnose service issues and verify service credit claims.
Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the Services, or any other Indico performance issues, that (i) are caused by factors outside of Indico’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of Indico or its direct hosting subcontractors; (ii) result from any actions or inactions of Customer or any third party (other than Indico’s direct hosting subcontractor); (iv) arise from Indico’s suspension or termination of Customer’s right to use the Services in accordance with the Agreement, (v) Scheduled Maintenance, or (vi) Cluster Optimization (collectively, the “Exclusions”).
B4615443.1
