KORBYT SUBSCRIPTION ADDENDUM
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. This Korbyt Addendum (this “Addendum”) supplements the terms of the Agreement between RMG Enterprise Solutions, Inc., including its affiliates (“RMG”) and the Customer and describes the terms under which RMG offers the Customer access to its Services (defined below). Except as provided herein, all other terms and conditions of the Agreement shall remain in full force and effect. In the event of any conflict between the terms and conditions set forth in this Addendum and the terms and conditions of the Agreement, the terms and conditions of this Addendum will govern. By accessing any Service, Customer agrees to comply with and to be bound by the terms of this Addendum, including the policies and guidelines linked to (by way of the provided URLs) from this Agreement. If Customer does not understand or agree with the terms below, please do not use the Service. This Agreement is incorporated by reference into each Order executed by Customer. RMG may amend this Addendum at any time in its sole discretion, effective upon posting the amended Addendum at the domain or subdomains of www.korbyt.com/korbyt-addendum-terms
where the prior version of the Addendum was posted, or by communicating these changes through any written contact method RMG has established with Customer.
The Parties hereby agree to the following:
Capitalized terms used herein and not defined below or elsewhere in this Addendum shall have the meanings given them in the Agreement.
“Customer Data” means any materials, information, data, content, and other information that Customer, or its employees or agents, transmit to RMG via the Korbyt Platform, or via another medium for the purpose of display or transmission via the Korbyt Platform. “Documentation” means any written or electronic documentation, images, video or text specifying the functionality of the Software or Services that is provided or made available by RMG to Users.
“Hybrid Software” means software provided by RMG to Customer residing on Customer’s on-premises server(s) which interfaces with the Korbyt Platform during the applicable Subscription Term.
“Korbyt Platform” means RMG’s online, subscription and cloud-based application and platform branded as Korbyt. “Malicious Code” means code, files, scripts, agents or programs intended to do harm.
“Order” means an ordering document executed by the Parties, including any of their Affiliates, which incorporates by reference the terms of the Agreement, including this Addendum, identifies the Services ordered by Customer, sets forth the prices for the Services and contains other applicable information, terms and conditions. By entering into an Order hereunder, an Affiliate agrees to
be bound by the Terms of the Agreement as if it were an original party hereto.
“RMG Content” means all content in text, graphic, animation, video, or any other form that is owned by RMG or licensed to RMG by a Third Party Provider.
“Services” means the the products and services listed in one or more Order(s) made available via the Software.
“Software” means software provided by RMG, either by download and/or access through the internet, that allows the User to access any functionality in connection with the Services, including Hybrid Software and the Korbyt Platform.
“Subscription Term” means the period of time that Customer has the right to use the Services specified in the Order(s) including the initial term and any renewal terms.
“Users” means Customer’s employees or contractors authorized to access and use the Korbyt Platform in accordance with this Addendum.
2. USE OF SERVICES
2.1 Access and Use. RMG hereby grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable right to access the Services for its internal business purposes during the Subscription Term and subject to the terms of the Order(s), this Agreement and Documentation. Except for the foregoing rights in this Section 2.1, no other rights in the Services or Software are granted hereunder.
2.2 Subscriptions. Unless otherwise specified in an Order, Services are purchased as subscriptions. Additional subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its subscriptions hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by RMG regarding future functionality or features.
2.3 Usage Metrics. Each subscription is subject to a bandwidth usage limit of 2 gigabytes per endpoint per month and each cloud account is limited to 500 gigabytes of storage. If Customer exceeds the usage metrics described in this Section, Customer shall pay as specified in the applicable Order, or if not specified using the then-current rates for the applicable usage metric.
2.4 Hybrid Platform. If Customer’s subscription to the Service utilizes Hybrid Software and so long as Customer remains in compliance with this Addendum, RMG hereby grants Customer a nonexclusive, revocable, nonsublicensable and nontransferable limited right to install and use the Hybrid Software during the applicable Subscription Term.
2.5 Changes and Environment. RMG regularly updates the Services and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements. The Services will be hosted on a server that is maintained by RMG or its designated third party supplier or data center. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Services.
3.1 Obligations. RMG agrees to provide either Standard Support (as defined in Schedule A) for the Services to Customer at no additional charge, or Premium Support (as defined in Schedule A) if purchased (Standard Support and Premium Support each referred to herein as “Support”).
3.2 Exceptions to Support. RMG does not provide Support with respect to: (i) a Service that have been altered or modified by anyone other than RMG or its licensors; (ii) a Service used other than in accordance with the Documentation; (iii) Professional Services, or (iv) errors or malfunction caused by any data, systems or programs not supplied by RMG.
4. WARRANTY AND DISCLAIMERS
4.1 RMG Warranty. RMG represents and warrants that (i) it has sufficient rights in the Services to grant to Customer the rights to access and use the Services granted herein; (ii) it will provide the Services in a manner consistent with general industry standards; (iii) it uses commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and shall notify Customer promptly upon RMG’s knowledge of any unauthorized access or use that causes a materially adversely effect on RMG’s provision of the Services to Customer or Customer’s use of the Services and (iv) the Services shall perform materially in accordance with the Documentation.
4.2 Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS ADDENDUM, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR STATUTORILY, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5. PROPRIETARY RIGHTS
5.1 RMG’s Intellectual Property Rights. As between RMG and Customer, all rights, title, and interest in and to all intellectual property rights in the Services are and will be owned exclusively by RMG. This Addendum is not a sale and does not convey to Customer any rights of ownership in or related to the Services, or any deliverables. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patents, and other proprietary right relating to the Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by RMG.
5.2 Customer Data. As between Customer and RMG, Customer owns all rights, title and interest in and to all Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and warrants that that it has and will have all rights and consents necessary to allow RMG to use this data as contemplated by this Addendum. Customer hereby grants to RMG during the Subscription Term a royalty-free, fully-paid, non-exclusive,
non-transferable (except in cases of assignment allowed under the Agreement), sub-licensable, worldwide right to use and process Customer Data solely for the purpose of providing to Customer the Services and any other activities expressly agreed to by Customer.
6. Customer Responsibilities; Restrictions
6.1 User IDs. Customer is responsible for providing and administering usernames and passwords for all Users (the “Log- In Information”). Each User must have a valid username and password for the purpose of accessing the Services. Customer and Users must keep all Log-In Information strictly confidential. RMG will not be liable for any loss that Customer or an User may incur as a result of someone else using an Users’ passwords or accounts, either with or without the applicable Users’ knowledge.
6.2 Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Agreement), distribute, disclose, or otherwise commercially exploit or make available to any third party the Services; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Services; (iii) “frame” or “mirror” the Services on any other server or device; (iv) access the Services for any benchmarking or competitive purposes or use the Services for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use, (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Services, (vi) remove, obscure or modify a copyright or other proprietary rights notice in the Services; (vii) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party privacy rights; (viii) use the Services to create, use, send, store, or Malicious Code; (ix) attempt to gain or permit unauthorized access to the Services or related systems or networks, including but not limited to conducting any penetration testing, denial of service attacks, or similar efforts; (x) use the Services other than in compliance with all applicable laws and regulations; or (xi) permit or assist any other party (including any user) to do any of the foregoing.
6.3 Breach by User. Any failure by a User to comply with this Addendum is deemed to be a breach by Customer, and RMG shall not be liable for any damages incurred by Customer or any third party resulting from such breach. Customer shall immediately take all necessary steps, including providing notice to RMG, to effect the termination of an Log-In Information for any User if there is any compromise in the security of that Log-In Information or if unauthorized use is suspected or has occurred.
6.4 Third Party Content. The Services may provide links that allow Customer or Users to leave the Services and/or access third party data or websites. The linked sites are not under the control of RMG and RMG is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites.
6.5 Suspension Rights. RMG may at any time suspend or turn off the access of Customer or Users to the Services and/or disable Log-In Information if Customer or any User: (i) materially breaches (or RMG reasonably suspects such breach) the terms of this Addendum, the Agreement, RMG’s policies; (ii) violates any applicable laws or regulations; or (iii) is harmful to RMG, Customer, RMG’s or Customer’s network or facilities, other RMG customers or users. RMG shall not be liable to Customer or any User for any suspension of the Services.
7. PAYMENT TERMS
7.1 General. Customer shall pay the fees specified in the applicable Order within 30 days of the invoice date. Except as otherwise specified herein or in an Order, (a) fees are based on Subscriptions purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, (c) quantities purchased cannot be decreased during the relevant Subscription Term, (d) fees paid or payable for the Services are not contingent upon the performance of any Professional Services.
7.2 Invoicing. Unless otherwise stated in an Order, RMG will invoice Customer for
subscription fees stated in an Order annually in advance.
8.1 Term. Notwithstanding any provision to the contrary in the Agreement and except as provided in Section 8.3 below, an Order for Services may not be terminated early by either party prior to the expiration of the Subscription Term.
8.2 Renewal. All Subscriptions will automatically renew for the same period as the original Subscription Term (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non- renewal at least 60 days prior to the end of the applicable Subscription Term or Renewal Term.
8.3 Termination. Either Party may terminate an Order immediately upon written notice at any time if: (a) the other Party fails to (i) cure any material breach within 30 days or (ii) provide a written plan of cure acceptable to the non-breaching Party, each within 30 days of being notified in writing of the breach; (b) the other Party ceases business operations; or (c) the other Party becomes insolvent, generally stops paying its debts as they become due or becomes the subject of an insolvency or bankruptcy proceeding. If this Agreement is terminated by Customer due to an uncured material breach by RMG, RMG shall promptly refund the pro-rata amount of any pre-paid subscription fees attributable to periods after the date of such termination.
9 LIMITATIONS OF LIABILITY.
9.1 EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 6.2, AND 7 HEREIN, RMG’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, OR FROM PERSONAL INJURY OR PHYSICAL DAMAGE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, NEITHER PARTY’S LIABILITY IN CONNECTION WITH THIS ADDENDUM SHALL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO THE EVENT TRIGGERING SUCH LIABILITY.
9.2 EXCLUSION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND, REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THIS ADDENDUM OR THE SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES.
SCHEDULE A – HELP DESK
RMG offers two levels of support: Standard Support and Premium Support (each, a “Support Plan”).
1. SUPPORT AVAILABILITY
A. Standard Support. Standard support for the Korbyt Platform is available to Customer at no additional charge and is available from, Monday – Friday, 7A.M. – 7 P.M. US Central Time Zone excluding RMG holidays.
B. Premium Support. Premium support is available 24 hours per day, 7 days a week, 365 days a year.
C. After-Hours & Holiday Support. Additional support fees are due for after-hours and Weekend Emergency Technical Support and Holiday Emergency Technical Support (RMG Networks Holidays).
2. SUPPORT SERVICES
A. Included Services. Provided that Customer complies with the terms of this Agreement, including but not limited to Section 2(B) below, RMG will provide the applicable support availability, response times, and services as described herein.
B. Excluded Services. RMG is not obligated to provide any services beyond those offered in the Customer’s Support Plan. RMG only supports the then-current, generally available Korbyt Software major release version, the immediately previous major release version, and all update versions (including minor releases versions, path or hot fix versions). Customer acknowledges and agrees that there is no warranty of backward compatibility.
C. Customer’s Responsibilities. Customer shall:
(i) pay all Fees due under this Agreement and this Schedule;
(ii) pay for any on-site support at RMG’s then-current rates and pay for expenses incurred by RMG to perform on-site support (including expenses for travel, labor and lodging);
(iii) pay RMG’s then-current rates for any support not covered by Customer’s Support Plan;
(iv) grant RMG appropriate access to Customer’s network, as needed;
(v) comply with RMG’s recommended or required implementations regarding any upgrades and updates;
(vi) install and maintain hardware needed for the Services; and
(vii) indicate the following in any request for support: name, company, telephone
number, description of the problem, whether the Korbyt Platform is inoperative, and when Customer will be available to receive a return call from RMG.
RESPONSE TIME AND UPDATE FREQUENCY
Certain issues that require more troubleshooting, Korbyt Platform or software changes, corrupted data bases, network issues, policy and security issues, or system fixes may require a longer response time. Under these situations, RMG may provide the Customer with estimates regarding resolution. The response times listed are targeted response times offered on the basis of commercially reasonable efforts, and do not constitute a service level agreement, warranty or other commitment and have no penalty or other consequences associated with failure to meet such times.