Contracts
- Main Legal Center Landing Page
- SaaS Security Attachment
- Professional Services Schedule
- Support Prioritization Attachment
- Acceptable Use Policy Attachment - AUP
- HxP Acceptable Use Policy
- HxP and Sharebase Privacy Policy
- Hyland Experience Technical Support
- Hyland Experience Security
- Hyland Experience Service Levels
- Data Processing Addendum - Brazil
- Data Processing Addendum - GDPR
- Hyland Anti-Bribery/Anti-Corruption Policy and Guide - English
- Hyland Anti-Bribery and Anti-Corruption Policy and Guide - Portuguese
- Hyland Anti-Bribery and Anti-Corruption Policy and Guide - Spanish
- Hyland Anti-Bribery and Anti-Corruption Policy and Guide - German
- HIPAA Subcontractor Addendum
- Hyland Purchase Order Terms and Conditions
- Hyland Poland Sp. zoo Purchase Order Terms and Conditions
- Software-as-a-Service Schedule
- Software License and Maintenance Schedule - Subscription
- SaaS Agreement - AWS
- Hyland's Compliance and Due Diligence Form
- Supplement to Hyland's Compliance and Due Diligence Form
- Contractor Use Agreement - SF V1
- Global Data Processing Addendum
- Customer GDPR DPA
- Service Class Manual
- Healthcare Service Class Manual
- Healthcare Schedule - SaaS
- Healthcare Schedule
- Global Customer Data Processing Schedule
- GDPR Partner Data Processing Schedule
- Service Class Manual - Partner Contracts with Customer
- Amendment for Customer Repository Access (Maven)
- Amendment for Partner Repository Acces (Maven)
- Professional Services Terms for Services Proposals
- Managed Services Schedule
- General Terms Schedule
- Global Services
- Executable Add-On Subscription Amendment
- Support Prioritization Attachment - Portuguese - Hyland Cloud Services
- SaaS Security Attachment - Portuguese
- Nuxeo Subscription Terms
- Under Construction
- Support Prioritization Attachment - Subscription Licenses
- Support Prioritization Attachment - Hyland Cloud Services
- Add-On Subscription Terms
- YouTube Integration Schedule
- Hyland Content Portal Terms of Use
- Subscription Terms - Full Conversion to Subscription Licenses
- Agenda Media Schedule
- Pacsgear Equipment Schedule
- Enterprise License Schedule
- Professional Services Terms and Conditions
- PaaS Security Attachment
- Platform-as-a-Service Schedule
- Nuxeo Cloud Services Specification
- Software Maintenance and Support Terms
- Resource as a Service (RaaS) Schedule
- Hyland Office Broker Terms
- Hyland Experience Guide
- Hyland Offerings
- IMR Solution Version Information
- Hyland Experience Schedule
- Success Paths Schedule
- IAConnect AP Base Requirements Document
- VPConnect Base Solution Requirements Document
- Managed GovCloud Platform Schedule
Main Legal Center Landing Page
Effective July 16th 2021
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Hyland Direct Customers Contracts and policies for Hyland direct customers  | Hyland Partners Contracts and policies for Hyland partners  | Hyland Vendors Contracts and policies and Hyland vendors  |
Effective May 4th 2021 to July 16th 2021
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Hyland direct customers contracts and policies for Hyland direct customers | Hyland resellers contracts and policies for Hyland resellers | Hyland vendors contracts and policies and Hyland vendors |
Effective May 4th 2021 to May 4th 2021
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Hyland direct customers contracts and policies for Hyland direct customers | Hyland resellers contracts and policies for Hyland resellers | Hyland vendors contracts and policies and Hyland vendors |
SaaS Security Attachment
Effective June 17th 2023
DownloadTable of Contents
- Risk Management.
- Conducting an annual risk assessment designed to identify threats and vulnerabilities in the administrative, physical, legal, regulatory, and technical safeguards used to protect the Hyland Cloud Service.
- Maintaining a documented risk remediation process to assign ownership of identified risks, establish remediation plans and timeframes, and provide for periodic monitoring of progress.
- Information Security Program.
- Maintaining a documented comprehensive Hyland Cloud Service information security program. This program will include policies and procedures based on industry standard practices, which may include ISO 27001/27002, or other equivalent standards.
- Such information security program shall include, as applicable: (i) adequate physical and cyber security where Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to Hyland personnel employment.
- These policies will be reviewed and updated by Hyland management annually.
- Organization of Information Security. Assigning security responsibilities to appropriate Hyland individuals or groups to facilitate protection of the Hyland Cloud Service and associated assets.
- Human Resources Security.
- Hyland employees undergo comprehensive screening during the hiring process. Background checks and reference validation will be performed to determine whether candidate qualifications are appropriate for the proposed position. Subject to any restrictions imposed by applicable law and based on jurisdiction, these background checks include criminal background checks, employment validation, and education verification as applicable.
- Ensuring all Hyland employees are subject to confidentiality and non-disclosure commitments before access is provisioned to the Hyland Cloud Service or Customer Data.
- Ensuring applicable Hyland employees receive security awareness training designed to provide such employees with information security knowledge to provide for the security, availability, and confidentiality of Customer Data.
- Upon Hyland employee separation or change in roles, Hyland shall ensure any Hyland employee access to the Hyland Cloud Service is revoked in a timely manner and all applicable Hyland assets, both information and physical, are returned.
- Asset Management.
- Maintaining asset and information management policies and procedures. This includes ownership of assets, an inventory of assets, classification guidelines, and handling standards pertaining to Hyland assets.
- Maintaining media handling procedures to ensure media containing Customer Data as part of the Hyland Cloud Service is encrypted and stored in a secure location subject to strict physical access controls.
- When a Hyland Cloud Service storage device has reached the end of its useful life, procedures include a decommissioning process that is designed to prevent Customer Data from being exposed to unauthorized individuals using the techniques recommended by NIST to destroy data as part of the decommissioning process.
- If a Hyland storage device is unable to be decommissioned using these procedures, the device will be virtually shredded, degaussed, purged/wiped, or physically destroyed in accordance with industry-standard practices.
- Access Controls.
- Maintaining a logical access policy and corresponding procedures. The logical access procedures will define the request, approval and access provisioning process for Hyland personnel. The logical access process will restrict Hyland user (local and remote) access based on Hyland user job function (role/profile based, appropriate access) for applications and databases. Hyland user access recertification to determine access and privileges will be performed periodically. Procedures for onboarding and offboarding Hyland personnel users in a timely manner will be documented. Procedures for Hyland personnel user inactivity threshold leading to account suspension and removal threshold will be documented.
- Limiting Hyland’s access to Customer Data to its personnel who have a need to access Customer Data as a condition to Hyland’s performance of the services under this Agreement. Hyland shall utilize the principle of “least privilege” and the concept of “minimum necessary” when determining the level of access for all Hyland users to Customer Data. Hyland shall require strong passwords subject to complexity requirements and periodic rotation and the use of multi-factor authentication.
- Ensuring strict access controls are in place for Customer Data access by Hyland. Customer administrators control its user access, user permissions, and Customer Data retention to the extent such controls are available to Customer with respect to the Hyland Cloud Service.
- System Boundaries.
- Hyland is not responsible for any system components that are not within the Hyland Cloud Platform, including network devices, network connectivity, workstations, servers, and software owned and operated by the Customer or other third parties. Hyland may provide support for these components at its reasonable discretion.
- The processes executed within the Hyland Cloud Platform are limited to those that are executed by a Hyland employee (or Hyland authorized third party) or processes that are executed within Hyland’s established system boundaries, in whole. This includes, but is not limited to, hardware installation, software installation, data replication, data security, and authentication processes.
- Certain business processes may cross these boundaries, meaning one or more tasks are executed outside of Hyland’s established system boundaries for the Hyland Cloud Platform, one or more tasks are executed by individuals who are not Hyland personnel (or authorized third-parties), or one or more tasks are executed based on written requests placed by Customer. In such event, Hyland will provide support for such processes to the extent they occur within Hyland’s established system boundaries, but Hyland is not responsible for providing support for such processes to the extent they occur outside of such established system boundaries. At its reasonable discretion, Hyland may provide limited support for processes that occur outside such established system boundaries for the Hyland Cloud Platform. Examples of business processes that cross these boundaries include, but are not limited to, Hyland Cloud Service configuration changes, processing that occurs within the Hyland Cloud Service, user authorization, and file transfers.
- Encryption.
- Customer Data shall only be uploaded to the Hyland Cloud Services in an encrypted format such as via SFTP, TLS/SSL, or other equivalent method.
- Customer Data shall be encrypted at rest.
- Where use of encryption functionality may be controlled or modified by Customer, in the event Customer elects to modify the use of or turn off any encryption functionality, Customer does so at its own risk.
- Physical and Environment Security.
- The Hyland Cloud Platform uses data centers or third party service providers who have demonstrated compliance with one or more of the following standards (or a reasonable equivalent): International Organization for Standardization (“ISO”) 27001 and/or American Institute of Certified Public Accountants (“AICPA”) Service Organization Controls (“SOC”) Reports for Services Organizations. These providers provide Internet connectivity, physical security, power, and environmental systems and other services for the Hyland Cloud Platform.
- Hyland uses architecture and technologies designed to promote both security and high availability.
- Operations Security.
- Maintaining documented Hyland cloud operating procedures.
- Maintaining change management controls to ensure changes to Hyland Cloud Service production systems made by Hyland are properly authorized and reviewed prior to implementation. Customer is responsible for testing all configuration changes, authentication changes and upgrades implemented by Customer or implemented by Hyland at the request of Customer prior to production use of the Hyland Cloud Service. In cases where the Customer relies upon Hyland to implement changes on its behalf, a written request describing the change must be submitted (e.g. an e-mail, or another method provided by Hyland) by Customer’s designated Customer Security Administrators (“CSAs”) or set forth in a Services Proposal. Hyland will make scheduled configuration changes that are expected to impact Customer access to their Hyland Cloud Service during a planned maintenance window. Hyland may make configuration changes that are not expected to impact Customer during normal business hours.
- Monitoring usage and capacity levels within the Hyland Cloud Platform to adequately and proactively plan for future growth.
- Utilizing virus and malware protection technologies, which are configured to meet common industry standards designed to protect the Customer Data and equipment located within the Hyland Cloud Platform from virus infections or similar malicious payloads.
- Implementing disaster recovery and business continuity procedures. These will include replication of Customer Data to a secondary location.
- Maintaining a system and security logging process to capture system logs deemed critical by Hyland. These logs shall be maintained for at least six months and reviewed on a periodic basis.
- Maintaining system hardening requirements and configuration standards for components deployed within the Hyland Cloud Platform. Ensuring servers, operating systems, and supporting software used in the Hyland Cloud Platform receive all Critical and High security patches within a timely manner, but in no event more than 90 days after release, subject to the next sentence. In the event any such security patch would materially adversely affect the Hyland Cloud Service, then Hyland will use reasonable efforts to implement compensating controls until a security patch is available that would not materially adversely affect the Hyland Cloud Service.
- Conducting Hyland Cloud Platform vulnerability scans or analysis on at least a quarterly basis and remediate all critical and high vulnerabilities identified in accordance with its patch management procedures.
- Conducting Hyland Cloud Platform penetration tests at least annually.
- Communications Security
- Implementing Hyland Cloud Platform security controls to protect information resources within the Hyland Cloud Platform.
- When supported, upon implementation and once annually thereafter, Customer may request Hyland limit access to Customer’s Hyland Cloud Service to a list of pre-defined IP addresses at no additional cost.
- Supplier Relationships. Maintaining a Vendor Management Program for its critical vendors. This program will ensure critical vendors are evaluated on an annual basis.
- Security Incident.
- Employing incident response standards that are based upon applicable industry standards, such as ISO 27001:2013 and National Institute for Standards and Technology (“NIST”), to maintain the information security components of the Hyland Cloud Service environment.
- Responses to these incidents follow the Hyland documented incident response sequence. This sequence includes the incident trigger phase, evaluation phase, escalation phase, response phase, recovery phase, de-escalation phase, and post-incident review phase.
- If Hyland has determined Customer’s Hyland Cloud Service has been negatively impacted by a security incident, Hyland will deliver a root cause analysis summary. Such notice will not be unreasonably delayed, but will occur after initial corrective actions have been taken to contain the security threat or stabilize the Hyland Cloud Service.
- The root cause analysis will include the duration of the event, resolution, technical summary, outstanding issues, and follow-up, including steps Customer needs to take in order to prevent further issues. Hyland Cloud Service information including data elements that require additional confidentiality and security measures (including that of other customers impacted in the event) will not be publicly disclosed. If Customer needs additional details of an incident, a request to the Hyland GCS Support team must be submitted and handled on a case by case basis. The release of information process may require an on-site review to protect the confidentiality and security of the requested information.
- Hyland will notify Customer of a Security Incident within 48 hours. A “Security Incident” means a determination by Hyland of an actual disclosure of unencrypted Customer Data to an unauthorized person or entity that compromises the security, confidentiality, or integrity of the Customer Data.
- Information Security Aspects of Business Continuity Management.
- Maintaining a business continuity and disaster recovery plan.
- Reviewing and testing this plan annually.
- Aggregated Data.
- Hyland owns all Customer and User registration and billing data collected and used by Hyland that is required for user set-up, use and billing for the Hyland Cloud Service (“Account Information”) and all aggregated, anonymized and statistical data derived from the use and operation of the Hyland Cloud Service, including without limitation, the number of records in the Hyland Cloud Service, the number and types of transactions, configurations, and reports processed as part of the Hyland Cloud Service and the performance results of the Hyland Cloud Service (the “Aggregated Data”).
- Hyland may utilize the Account Information and Aggregated Data for purposes of operating Hyland’s business. For clarity, Account Information and Aggregated Data does not include Customer Data.
- Security Inquiries.
- Monitoring its compliance with its information security program. This includes periodic internal reviews. Results are shared with Hyland leadership and deviations tracked through to remediation.
- Maintaining a periodic external audit program. Completed attestations, such as available SOC 2 reports, are provided to Customer upon written request.
- Customer may conduct audits (which includes assessments, questionnaires, guided reviews or other requests to validate Hyland’s security controls) (each a “Security Inquiry”) of Hyland’s operations that participate in the ongoing delivery and support of the Hyland Cloud Service purchased by Customer on an annual basis (but no more than once during any 12-month period); provided, that Customer provides Hyland with advance written notice of its desire to conduct such Security Inquiry and the proposed Security Inquiry does not overlap with, or otherwise cover the same or similar information as, or scope of: (1) any controls already provided for by an external audit or assessment already performed by Hyland, such as a SOC 2 report, ISO 27001 or other similar audit or assessment that is made available to Customer upon Customer’s request; or (2) any content already provided by Hyland through its completed SIG, CAIQ or similar questionnaire that is made available to Customer upon request. For each Security Inquiry, (1) Hyland and Customer must mutually agree upon the timing, scope, and criteria of such Security Inquiry, which, subject to the foregoing, may include the completion of questionnaires supplied by Customer; (2) confidential and restricted documentation, such as Hyland internal policies, practices, and procedures, including any documentation requested by Customer that cannot be removed from Hyland’s premises as a result of physical limitations or policy restrictions will not be provided externally or removed from Hyland’s premises and such reviews must be conducted onsite at Hyland’s corporate headquarters in Ohio or through a secure screenshare which may be arranged by Hyland to prohibit any type of copying or screen shots; (3) Customer understands and agrees that Hyland will not permit access to internal systems or devices used to host or support Hyland’s offerings; (4) to the extent Customer desires to engage a third party to perform such Security Inquiry, Hyland must approve of such third party in writing in advance, Customer shall cause such third party to enter into a Non-Disclosure Agreement with Hyland and agree to abide by Hyland’s security standards, and Customer shall manage the engagement with the third party, ensuring the third party understands the scope of the Security Inquiry as mutually agreed upon between Hyland and Customer and how Customer utilizes the Hyland Cloud Service; and (5) Customer shall pay Hyland fees (at Hyland’s standard rates) for the Professional Services (including any out-of-pocket costs and expenses) that are required or requested of Hyland in connection with such Security Inquiry. Where necessary, Hyland will provide private and reasonable accommodation at Hyland’s corporate headquarters in Ohio for data analysis and meetings. Upon reasonable advance written request, Hyland and Customer may mutually agree to make necessary employees or contractors available for interviews in person or on the phone during such Security Inquiry at Customer’s cost and expense. Customer is prohibited, , and Customer shall prohibit each third party Security Inquiry from distributing or publishing the results of such Security Inquiry to any third party without Hyland’s prior written approval. Notwithstanding anything to the contrary within this Agreement, nothing in this Agreement (including this section) will require Hyland or any of its affiliates to disclose information that is subject to attorney-client privilege.
Effective June 17th 2023
DownloadSAAS-SICHERHEITSANHANG
Einleitung: Hyland unterhält und verwaltet ein umfassendes schriftliches Sicherheitsprogramm, das den Hyland Cloud-Dienst abdeckt und zum Schutz: (a) der Sicherheit und Integrität der Kundendaten; (b) vor Bedrohungen und Gefahren, die sich negativ auf die Kundendaten auswirken können; und (c) vor unbefugtem Zugriff auf die Kundendaten, dient. Dieses Programm umfasst Folgendes :
- Risikomanagement.
- Durchführung einer jährlichen Risikobewertung um Bedrohungen und Schwachstellen in den administrativen, physischen, rechtlichen, behördlichen und technischen Sicherheitsvorkehrungen zu identifizieren, die zum Schutz des Hyland Cloud-Dienstes eingesetzt werden.
- Aufrechterhaltung eines dokumentierten Risikosanierungsprozesses, um die Verantwortung für identifizierte Risiken zuzuweisen, Sanierungspläne und Zeitrahmen festzulegen und eine regelmäßige Überwachung des Fortschritts zu gewährleisten.
- Informationssicherheitsprogramm.
- Aufrechterhaltung eines dokumentierten, umfassenden Informationssicherheitsprogramms für den Hyland Cloud-Dienst. Dieses Programm umfasst Richtlinien und Verfahren, die auf Industriestandards basieren, wie z. B. ISO 27001/27002 oder anderen gleichwertige Standards.
- Ein solches Informationssicherheitsprogramm muss, gegebenenfalls, Folgendes umfassen: (i) angemessene physische Sicherheit und Cybersicherheit an den Orten, an denen Kundendaten verarbeitet und/oder gespeichert werden; und (ii) angemessene Vorsichtsmaßnahmen in Bezug auf die Beschäftigung von Hyland-Mitarbeitern.
- Diese Richtlinien werden jährlich vom Hyland-Management überprüft und aktualisiert.
- Organisation der Informationssicherheit. Zuweisung von Sicherheitsverantwortlichkeiten an geeignete Hyland-Einzelpersonen oder -Gruppen, um den Schutz des Hyland Cloud-Dienstes und der damit verbundenen Vermögenswerte zu erleichtern.
- Sicherheit im Personalwesen.
- Hyland-Mitarbeiter werden während des Einstellungsprozesses einer umfassenden Prüfung unterzogen. Es werden Hintergrundüberprüfungen und Referenzvalidierungen durchgeführt, um festzustellen, ob die Qualifikationen des Kandidaten für die vorgeschlagene Position geeignet sind. Vorbehaltlich jeglicher Einschränkungen, die durch geltendes Recht auferlegt werden und auf der Grundlage der Rechtsprechung, umfassen diese Hintergrundüberprüfungen gegebenenfalls eine strafrechtliche Hintergrundüberprüfung, eine überprüfung der vorhergehender Beschäftigungen und der Ausbildung.
- Sicherstellung, dass alle Hyland-Mitarbeiter einer Vertraulichkeits- und Geheimhaltungsverpflichtung unterliegen, bevor der Zugriff auf den Hyland Cloud-Dienst oder die Kundendaten bereitgestellt wird.
- Sicherstellung, dass alle Hyland-Mitarbeiter eine Sicherheitsbewusstseinsschulung erhalten, welche diesen Mitarbeitern Kenntnisse zur Informationssicherheit vermittelt, um die Sicherheit, Verfügbarkeit und Vertraulichkeit der Kundendaten zu gewährleisten.
- Nach dem Ausscheiden eines Hyland-Mitarbeiters oder einem Rollenwechsel stellt Hyland sicher, dass der Zugriff eines Hyland-Mitarbeiters auf den Hyland Cloud-Dienst zeitnah widerrufen wird und alle anwendbaren Hyland-Vermögenswerte, sowohl Informationen als auch physische Werte, zurückgegeben werden.
- Vermögensverwaltung.
- Aufrechterhaltung von Richtlinien und Verfahren zur Verwaltung von Vermögenswerten und Informationen. Dies umfasst Eigentumsrechte an Vermögenswerten, eine Bestandsaufnahme von Vermögenswerten, Klassifizierungsrichtlinien und Handhabungsstandards für Hyland-Vermögenswerte.
- Aufrechterhaltung von Verfahren zur Handhabung von Medien, um sicherzustellen, dass Medien, die Kundendaten als Teil des Hyland Cloud-Dienstes enthalten, verschlüsselt und an einem sicheren Ort aufbewahrt werden, der strengen physischen Zugangskontrollen unterliegt.
- Wenn ein Hyland Cloud-Dienst-Speichergerät das Ende seiner Nutzungsdauer erreicht hat, beinhalten die Verfahren einen Stilllegungsprozess, der verhindern soll, dass Kundendaten unbefugten Personen zugänglich gemacht werden, in dem die von NIST empfohlenen Techniken zur Datenvernichtung als Teil des Stilllegungsprozesses angewendet werden.
- Wenn ein Hyland-Speichergerät mit diesen Verfahren außer Betrieb genommen werden kann, wird das Gerät virtuell geschreddert, entmagnetisiert, bereinigt/gelöscht oder physisch zerstört, in Übereinstimmung mit branchenüblichen Verfahren.
- Zugriffskontrollen.
- Aufrechterhaltung einer logischen Zugriffsrichtlinie und entsprechender Verfahren. Die Verfahren für den logischen Zugriff definieren den Antrags-, Genehmigungs- und Zugriffsprozess für Hyland-Mitarbeiter. Der logische Zugriffsprozess beschränkt den Zugriff von Hyland-Benutzern (lokal und remote) basierend auf der Arbeitsfunktion des Hyland-Benutzers (rollen-/profilbasiert, angemessener Zugriff) für Anwendungen und Datenbanken. Der Zugriff der Hyland-Benutz wird in regelmäßigen Abständen rezertifiziert, um Zugriffe und Privilegien zu bestimmen. Die Verfahren für den Einstellungs- und Kündigungsprozess von Hyland-Mitarbeitern in einer zeitgemässen Weise werden dokumentiert. Die Verfahren für die Inaktivitätsschwelle des Hyland-Mitarbeiters, welche zu einer Kontosperrung und -entfernung führt, werden dokumentiert.
- Beschränkung des Zugriffs von Hyland-Mitarbeitern auf Kundendaten, die den Zugriff auf die Kundendaten als Voraussetzung für die Erbringung der Leistungen von Hyland im Rahmen dieser Vereinbarung benötigen. Hyland wendet das Prinzip des „geringsten Privilegs“ und das Konzept des „minimal Notwendigen“ an, um den Grad des Zugriffs aller Hyland-Benutzer auf Kundendaten zu bestimmen. Hyland verlangt sichere Passwörter, die den Komplexitätsanforderungen und der regelmäßigen Rotation unterliegen, sowie die Verwendung der Multi-Faktor-Authentifizierung.
- Sicherstellung, dass strenge Zugriffskontrollen für den Zugriff auf Kundendaten durch Hyland vorhanden sind. Die Administratoren des Kunden kontrollieren den Benutzerzugriff, die Benutzerberechtigungen und die Aufbewahrung der Kundendaten in dem Umfang, in dem solche Kontrollen für den Kunden in Bezug auf den Hyland Cloud-Dienst zur Verfügung stehen.
- Systemgrenzen.
- Hyland ist nicht verantwortlich für Systemkomponenten, die sich nicht innerhalb der Hyland Cloud Plattform befinden, einschließlich Netzwerkgeräte, Netzwerkverbindungen, Workstations, Server und Software, die im Besitz des Kunden oder Dritter sind und von diesen betrieben werden. Hyland kann nach eigenem Ermessen Unterstützung für diese Komponenten anbieten.
- Die innerhalb der Hyland Cloud Plattform ausgeführten Prozesse beschränken sich auf diejenigen, die von einem Hyland-Mitarbeiter (oder einem von Hyland autorisierten Dritten) ausgeführt werden, oder auf Prozesse, die in ihrer Gesamtheit innerhalb der etablierten Systemgrenzen von Hyland ausgeführt werden. Dies beinhaltet, ist aber nicht beschränkt auf, Hardware-Installation, Software-Installation, Datenreplikation, Datensicherheit und Authentifizierungsprozesse.
- Bestimmte Geschäftsprozesse können diese Grenzen überschreiten, d.h. eine oder mehrere Aufgaben werden außerhalb der von Hyland festgelegten Systemgrenzen für die Hyland Cloud Plattform ausgeführt, eine oder mehrere Aufgaben werden von Personen ausgeführt, die keine Hyland-Mitarbeiter (oder autorisierte Dritte) sind, oder einer oder mehrere Aufgaben werden auf der Grundlage schriftlicher Anfragen des Kunden ausgeführt. In einem solchen Fall wird Hyland Unterstützung für solche Prozesse leisten, soweit sie innerhalb der von Hyland festgelegten Systemgrenzen auftreten. Hyland ist jedoch nicht dafür verantwortlich, solche Prozesse zu leisten, sofern sie außerhalb dieser festgelegten Systemgrenzen auftreten. Hyland kann nach eigenem Ermessen begrenzte Unterstützung für solche Prozesse bereitstellen, die außerhalb dieser festgelegten Systemgrenzen für die Hyland Cloud Plattform auftreten. Beispiele für Geschäftsprozesse, die diese Grenzen überschreiten, sind unter anderem Konfigurationsänderungen des Hyland Cloud-Dienstes, Verarbeitungen, die innerhalb des Hyland Cloud-Dienstes stattfinden, Benutzerautorisierung und Dateiübertragungen.
- Verschlüsselung.
- Kundendaten dürfen nur in einem verschlüsselten Format, wie z. B. SFTP, TLS / SSL oder einer anderen gleichwertigen Methode im Hyland Cloud-Dienst hochgeladen werden.
- Die Kundendaten werden im Ruhezustand verschlüsselt.
- Wenn die Verwendung der Verschlüsselungsfunktionalität vom Kunden kontrolliert oder geändert werden kann und der Kunde die Verwendung der Verschlüsselungsfunktionalität ändern oder deaktivieren möchte, geschieht dies beim Kunden auf eigenes Risiko.
- Physische Sicherheit und Umgebungssicherheit.
- Die Hyland Cloud Plattform verwendet Rechenzentren oder Drittanbieter, die die Einhaltung eines oder mehrerer der folgenden Standards (oder eines angemessenen Äquivalents) nachgewiesen haben: International Organization for Standardization („ISO“) 27001 und/oder des American Institute of Certified Public Accountants („AICPA“), Service Organization Controls („SOC“) Berichte für Serviceorganisationen. Diese Anbieter stellen Internetverbindungen, physische Sicherheit, Strom- und Umgebungssysteme sowie andere Dienste für die Hyland Cloud Plattform bereit.
- Hyland verwendet Architektur und Technologien, welche darauf ausgelegt sind, sowohl Sicherheit als auch hohe Verfügbarkeit zu fördern.
- Betriebssicherheit.
- Aufrechterhaltung der dokumentierten Hyland Cloud-Betriebsverfahren.
- Aufrechterhaltung von Change Management Kontrollen, um sicherzustellen, dass von Hyland vorgenommene Änderungen an den Hyland Cloud-Dienst Produktionssystemen vor der Implementierung ordnungsgemäss autorisiert und überprüft werden. Der Kunde ist dafür verantwortlich, alle Konfigurationsänderungen, Authentifizierungsänderungen und Upgrades, die vom Kunden oder von Hyland auf Anfrage des Kunden implementiert werden, vor der Produktionsnutzung des Hyland Cloud-Dienstes zu testen. In Fällen, in denen sich der Kunde darauf verlässt, dass Hyland Änderungen in seinem Namen vornimmt, muss eine schriftliche Anfrage, die die Änderung beschreibt (z. B. eine E-Mail oder eine andere von Hyland bereitgestellte Methode), von den vom Kunden benannten Customer Security Administrators („CSAs“) eingereicht oder in einem Dienstleistungsangebot dargelegt werden. Hyland wird während eines geplanten Wartungsfensters Konfigurationsänderungen vornehmen, die sich voraussichtlich auf den Zugriff des Kunden auf seinen Hyland Cloud-Dienst auswirken werden. Hyland darf Konfigurationsänderungen, bei denen keine Auswirkungen auf den Kunden zu erwarten sind, während der normalen Geschäftszeiten vornehmen.
- Überwachung der Nutzung und des Kapazitätsniveaus innerhalb der Hyland Cloud Plattform, um zukünftiges Wachstum angemessen und proaktiv zu planen.
- Verwendung von Viren- und Malware-Schutztechnologien, die so konfiguriert sind, dass sie den gängigen Industriestandards entsprechen, um die Kundendaten und Geräte in der Hyland Cloud Plattform vor Virusinfektionen oder ähnlichen Malicious Payloads zu schützen.
- Implementierung von Disaster Recovery- und Business Continuity-Verfahren. Dazu gehört die Replikation von Kundendaten an einen sekundären Speicherort.
- Aufrechterhaltung eines System- und Sicherheitsprotokollierungsprozesses zur Erfassung von Systemprotokollen, die von Hyland als kritisch eingestuft werden. Diese Protokolle müssen mindestens sechs Monate lang aufbewahrt und regelmäßig überprüft werden.
- Aufrechterhaltung von Systemhärtungsanforderungen und Konfigurationsstandards für Komponenten, die in der Hyland Cloud Plattform bereitgestellt werden. Sicherstellen, dass Server, Betriebssysteme und unterstützende Software, die in der Hyland Cloud Plattform verwendet werden, alle kritischen und Hochsicherheitspatches rechtzeitig erhalten, jedoch in keinem Fall mehr als 90 Tage nach der Veröffentlichung, vorbehaltlich des nächsten Satzes. Für den Fall, dass ein solcher Sicherheitspatch den Hyland Cloud-Dienst erheblich beeinträchtigen würde, wird Hyland angemessene Anstrengungen unternehmen, um Ausgleichskontrollen zu implementieren, bis ein Sicherheitspatch verfügbar ist, der den Hyland Cloud-Dienst nicht wesentlich beeinträchtigt.
- Mindestens vierteljährliche Durchführung von Schwachstellen-Scans oder -Analysen der Hyland Cloud Plattform und Behebung aller identifizierten kritischen und hochgradigen Schwachstellen, in Übereinstimmung mit seinen Patch-Management-Verfahren.
- Mindestens jährliche Durchführung von Penetrationstests der Hyland Cloud Plattform.
- Kommunikationssicherheit
- Implementierung von Sicherheitskontrollen für die Hyland Cloud Plattform zum Schutz von Informationsressourcen innerhalb der Hyland Cloud Plattform.
- Wenn unterstützt, kann der Kunde bei der Implementierung und danach einmal jährlich verlangen, dass Hyland den Zugriff auf den Hyland Cloud-Dienst des Kunden ohne zusätzliche Kosten auf eine Liste von vordefinierter IP-Adressen beschränkt.
- Lieferantenbeziehungen. Aufrechterhaltung eines Lieferantenverwaltungsprogramms für seine kritischen Lieferanten. Dieses Programm stellt sicher, dass kritische Lieferanten auf jährlicher Basis bewertet werden.
- Sicherheitsvorfall.
- Anwendung von Standards zur Reaktion auf Vorfälle, die auf anwendbaren Industriestandards basieren, wie z.B. ISO 27001:2013 und dem Nationalen Institut for Standards and Technology („NIST“), um die Informationssicherheitskomponenten der Hyland Cloud-Dienst-Umgebung aufrechtzuerhalten.
- Die Reaktionen auf solche Vorfälle folgen der von Hyland dokumentierten Reaktionssequenz auf Vorfälle. Diese Sequenz umfasst die Auslösephase des Vorfalls, die Bewertungsphase, die Eskalationsphase, die Reaktionsphase, die Wiederherstellungsphase, die Deeskalationsphase und die Überprüfungsphase nach dem Vorfall.
- Wenn Hyland festgestellt, dass der Hyland Cloud-Dienst des Kunden durch einen Sicherheitsvorfall negativ beeinflusst wurde, wird Hyland eine Zusammenfassung der Ursachenanalyse liefern. Eine solche Benachrichtigung wird nicht unangemessen verzögert, sondern erfolgt, nachdem erste Korrekturmaßnahmen ergriffen wurden, um die Sicherheitsbedrohung einzudämmen oder den Hyland Cloud-Dienst zu stabilisieren.
- Die Ursachenanalyse umfasst die Dauer des Ereignisses, die Lösung, die technische Zusammenfassung, ausstehende Probleme und Folgemassnahmen, einschließlich der Schritte, die der Kunde unternehmen muss, um weitere Probleme zu vermeiden. Die Informationen des Hyland Cloud-Dienstes, einschließlich der Datenelemente, die zusätzliche Vertraulichkeits- und Sicherheitsmaßnahmen erfordern (einschließlich derjenigen anderer Kunden, die von dem Ereignis betroffen sind), werden nicht öffentlich bekannt gegeben. Wenn der Kunde zusätzliche Details zu einem Vorfall benötigt, muss eine Anfrage an das Hyland GCS-Support-Team gestellt werden, die von Fall zu Fall bearbeitet wird. Der Prozess der Informationsfreigabe kann eine Überprüfung vor Ort erfordern, um die Vertraulichkeit und Sicherheit der angeforderten Informationen zu schützen.
- Hyland benachrichtigt den Kunden innerhalb von 48 Stunden über einen Sicherheitsvorfall. Ein „Sicherheitsvorfall“ bedeutet, dass Hyland eine tatsächliche Offenlegung von unverschlüsselten Kundendaten gegenüber einer nicht autorisierten Person oder Organisation feststellt, welche die Sicherheit, Vertraulichkeit oder Integrität der Kundendaten gefährdet.
- Informationssicherheitsaspekte des Business Continuity Managements.
- Aufrechterhaltung eines Business Continuity- und Disaster Recovery-Plans.
- Jährliche Überprüfung und Testung dieses Plans.
- Aggregierte Daten.
- Hyland ist Eigentümer aller von Hyland gesammelten und verwendeten Kunden- und Benutzerregistrierungs- und Abrechnungsdaten, welche für die Einrichtung, Nutzung und Abrechnung des Hyland Cloud-Dienstes erforderlich sind („Kontoinformationen“), sowie aller aggregierten, anonymisierten und statistischen Daten, die aus der Nutzung und dem Betrieb des Hyland Cloud-Dienstes abgeleitet werden, insbesondere die Anzahl der Datensätze im Hyland Cloud-Dienst, die Anzahl und Art der Transaktionen, Konfigurationen und Berichte, die im Rahmen des Hyland Cloud-Dienstes verarbeitet werden, sowie die Leistungsergebnisse des Hyland Cloud-Dienstes (die "Aggregierten Daten").
- Hyland kann die Kontoinformationen und Aggregierten Daten für den Betrieb von Hyland verwenden. Zur Klarstellung: Kontoinformationen und Aggregierte Daten umfassen keine Kundendaten.
- Sicherheitsanfrage.
- Die Überwachung der Einhaltung des Informationssicherheitsprogramms. Dies beinhaltet regelmäßige interne Überprüfungen. Die Ergebnisse werden mit dem Hyland-Management geteilt und Abweichungen werden bis zur Behebung verfolgt.
- Aufrechterhaltung eines regelmäßigen externen Prüfungsprogramms. Abgeschlossene Bescheinigungen, wie z. B. verfügbare SOC 2-Berichte, werden dem Kunden auf schriftliche Anfrage zur Verfügung gestellt.
- Der Kunde ist berechtigt, jährlich (jedoch nicht öfter als einmal innerhalb eines Zeitraums von 12 Monaten) Audits (einschließlich Bewertungen, Fragebögen, geführte Überprüfungen oder anderer Anfragen zur Validierung der Sicherheitskontrollen von Hyland; jeweils eine "Sicherheitsanfrage") der Hyland-Tätigkeiten durchzuführen, die an der laufenden Bereitstellung und Unterstützung des vom Kunden erworbenen Hyland Cloud-Dienstes beteiligt sind. Dies setzt voraus, dass der Kunde Hyland schriftlich vorab mitteilt, dass er eine solche Prüfung durchführen möchte und dass diese Sicherheitsanfrage sich nicht mit den gleichen oder ähnlichen Informationen oder dem Umfang von: (1) Kontrollen, die bereits in einer von Hyland durchgeführten externen Prüfung oder Bewertung vorgesehen sind (wie z. B. einem SOC 2-Bericht, ISO 27001 oder einer anderen ähnlichen Prüfung oder Bewertung), die dem Kunden auf Anfrage zur Verfügung gestellt wird, oder (2) Inhalten, die bereits von Hyland durch den ausgefüllten SIG-, CAIQ- oder ähnlichen Fragebogen dem Kunden auf Anfrage zur Verfügung gestellt werden, überschneidet. Für jede Sicherheitsanfrage gilt Folgendes: (1) Hyland und der Kunde vereinbaren einvernehmlich den Zeitpunkt, den Umfang und die Kriterien einer solchen Sicherheitsanfrage(dies kann unter den oben genannten Voraussetzungen das Ausfüllen der vom Kunden bereitgestellten Fragebögen beinhalten); (2) Dokumentation, die vertraulich oder zugangsbeschränkt ist (wie z. B. interne Richtlinien, Praktiken und Verfahren von Hyland, einschließlich der vom Kunden angeforderten Dokumentation, die aufgrund von physischen Einschränkungen oder Richtlinienbeschränkungen nicht aus den Räumlichkeiten von Hyland entfernt werden kann), wird nicht zur externen Ansicht zur Verfügung gestellt oder aus den Räumlichkeiten von Hyland entfernt; derartige Überprüfungen müssen vor Ort in der Unternehmenszentrale von Hyland in Ohio oder über eine sichere Bildschirmfreigabe durchgeführt werden, die von Hyland so eingerichtet werden kann, dass jede Art von Kopieren oder Screenshots verboten ist; (3) der Kunde nimmt zur Kenntnis und erklärt sich damit einverstanden, dass Hyland keinen Zugriff auf interne Systeme oder Geräte gestattet, die zum Hosten oder Unterstützen der Hyland-Angebote verwendet werden; (4) sofern der Kunde einen Dritten mit der Durchführung einer solchen Sicherheitsanfrage beauftragen möchte, muss Hyland den Einsatz dieses Dritten im Voraus schriftlich genehmigen; der Kunde muss diesen Dritten zudem dazu veranlassen, eine Geheimhaltungsvereinbarung mit Hyland abzuschließen und sich zur Einhaltung der Sicherheitsstandards von Hyland zu verpflichten; die Verwaltung der Zusammenarbeit mit diesem Dritten obliegt dem Kunden; der Kunde muss insbesondere sicherstellen, dass dem Dritte der zwischen Hyland und dem Kunden vereinbarte Umfang der Sicherheitsanfrage und die Nutzung der Hyland-Dienste durch den Kunden bekannt sind; und (5) der Kunde ist verpflichtet, Hyland Gebühren (zu Hyland‘s Standardtarifen) für die Dienstleistungen (einschließlich aller Auslagen und Kosten) zu zahlen , die von Hyland im Zusammenhang mit einer solchen Sicherheitsanfrage in Rechnung gestellt werden. Bei Bedarf wird Hyland in der Unternehmenszentrale von Hyland in Ohio private und angemessene Unterkünfte für Datenanalysen und Besprechungen bereitstellen. Hyland und der Kunde können nach angemessener Ankündigung einvernehmlich vereinbaren, die erforderlichen Mitarbeiter oder Auftragnehmer für persönliche oder telefonische Interviews während einer solchen Sicherheitsanfrage auf Kosten des Kunden zur Verfügung zu stellen. Dem Kunden ist es untersagt, die Ergebnisse dieser Sicherheitsanfrage ohne vorherige schriftliche Genehmigung von Hyland an Dritte weiterzugeben oder zu veröffentlichen. Der Kunde ist verpflichtet, diese Verpflichtung jeder Drittpartei, die an der Sicherheitsanfrage beteiligt ist, aufzuerlegen. Ungeachtet gegenteiliger Bestimmungen in dieser Vereinbarung verpflichtet nichts in dieser Vereinbarung (einschließlich dieses Abschnitts) Hyland oder eines seiner verbundenen Unternehmen zur Offenlegung von Informationen, die unter das Anwaltsgeheimnis fallen.
Effective June 17th 2023
DownloadADJUNTO DE SEGURIDAD DE SAAS
Introducción: Hyland mantiene y gestiona un programa de seguridad integral por escrito que cubre el Servicio en la Nube de Hyland diseñado para proteger: (a) la seguridad e integridad de los Datos del Cliente; (b) contra amenazas y peligros que puedan impactar negativamente los Datos del Cliente, y (c) contra el acceso no autorizado a los Datos del Cliente, y dicho programa incluye lo siguiente:
Effective June 17th 2023
DownloadSOUS-ANNEXE SECURITE SAAS
Introduction : Hyland maintient et gère un programme de sécurité complet, écrit, couvrant le Service Cloud Hyland et conçu pour protéger : (a) la sécurité et l'intégrité des Données Client ; (b) contre les menaces et les dangers pouvant avoir un impact négatif sur les Données Client ; et (c) contre les accès non autorisés aux Données Client. Le programme de sécurité comprend les éléments suivants :
I. Gestion des Risques.
a. Réalisation d'une évaluation annuelle des risques, conçue pour identifier les menaces et les vulnérabilités des mesures de protection administratives, physiques, légales, réglementaires et techniques utilisées pour protéger le Service Cloud Hyland.
b. Maintien d’un process documenté de remédiation des risques, afin d'attribuer la responsabilité des risques identifiés, d'établir les plans et délais de remédiation, et de prévoir un suivi périodique de l’avancement.
II. Programme de Sécurité de l'Information.
a. Maintien d’un programme de sécurité de l’information pour le Service Cloud Hyland, complet et documenté. Ce programme comprend des politiques et procédures établies à partir des pratiques standard de l'industrie, lesquelles peuvent inclure des normes ISO 27001/27002 ou équivalentes.
b. Ce programme de sécurité de l’information comprend, selon le cas : (i) la mise en œuvre de moyens de sécurité physique et de cyber-sécurité adéquats, là où les Données Client sont traitées et/ou stockées ; et (ii) la prise de précautions raisonnables en ce qui concerne les employés de Hyland.
c. Ces politiques seront revues et mises à jour chaque année par la direction d'Hyland.
III. Organisation de la Sécurité de l'Information. Attribution des responsabilités en matière de sécurité aux individus ou groupes Hyland appropriés afin de faciliter la protection du Service Cloud Hyland et des actifs associés.
IV. Sécurité des Ressources Humaines.
a. Les salariés de Hyland font l’objet d’un examen approfondi durant le process d'embauche. Des vérifications des antécédents et la validation des références sont effectuées afin de déterminer si les qualifications du candidat sont appropriées pour le poste proposé. Sous réserve de toute restriction imposée par la loi applicable et en fonction de la juridiction, ces vérifications d'antécédents comprennent la vérification du casier judiciaire, la validation des expériences professionnelles et la vérification des diplômes et formations, le cas échéant.
b. Hyland s'assure que tous ses salariés sont soumis à des engagements de confidentialité et de non-divulgation avant tout accès au Service Cloud Hyland ou aux Données Client.
c. Hyland s'assurer que tous les salariés concernés bénéficient d’une formation de sensibilisation à la sécurité dont l’objectif est de leur fournir les connaissances en matière de sécurité de l'information leur permettant d'assurer la sécurité, la disponibilité et la confidentialité des Données Client.
d. Lors du départ d'un salarié de Hyland ou d'un changement de poste, Hyland s'assure que tout accès salarié au Service Cloud d'Hyland est révoqué en temps utile et que tous les actifs de Hyland concernés, tant les informations que les équipements, lui sont restitués.
V. Gestion des Actifs.
a. Maintien des politiques et procédures de gestion des actifs et des informations, en ce compris la propriété des actifs, leur inventaire, les lignes directrices pour leur classification et les normes de traitement relatives aux actifs Hyland.
b. Maintien des procédures de traitement des supports afin de garantir que les supports contenant des Données Client, dans le cadre du Service Cloud Hyland, sont cryptés et stockés dans un emplacement sécurisé soumis à des contrôles d'accès physiques stricts.
c. Lorsqu'un dispositif de stockage du Service Cloud Hyland a atteint la fin de sa durée de vie utile, les procédures visées par cet article comprennent un processus de mise hors service, appliquant les techniques recommandées par le National Institute of Standards and technology (le « NIST »), afin de détruire les données dans le cadre de process de mise hors service, conçu pour empêcher que les Données Client soient exposées à des personnes non autorisées.
d. Dans le cas où un dispositif de stockage Hyland ne pourrait pas être mis hors service par le biais des procédures visées ci-avant, ce dispositif est alors virtuellement déchiqueté, démagnétisé, purgé/essuyé ou physiquement détruit conformément aux pratiques courantes de l'industrie.
VI. Contrôles d'Accès.
a. Maintien d’une politique d'accès logique et de procédures correspondantes. Les procédures d'accès logique définissent le process de demande, d'approbation et de fourniture d'accès pour le personnel Hyland. Le process d'accès logique limite l'accès des utilisateurs Hyland (locaux et distants) selon leur fonction (basée sur le rôle/profil, accès approprié) pour les applications et les bases de données. La recertification de l'accès des utilisateurs Hyland afin de déterminer leurs accès et privilèges est effectuée périodiquement. Les procédures d’onboarding et d’offboarding, en temps utile, des utilisateurs du personnel Hyland seront documentées, de même que les procédures relatives au seuil d'inactivité des utilisateurs parmi le personnel de Hyland menant à la suspension et à la suppression de leur compte.
b. Limitation de l'accès de Hyland aux Données Client, à son personnel ayant à en connaître pour l'exécution des services fournis par Hyland en vertu du Contrat. Hyland a recours au principe du « moindre privilège » et au concept du « minimum nécessaire » afin de déterminer le niveau d'accès de ses utilisateurs aux Données Client. Hyland exige des mots de passe forts soumis à des exigences de complexité et à une rotation périodique, ainsi que l'utilisation d'une authentification multifactorielle.
c. Hyland s'assure que des contrôles d'accès stricts sont en place pour l'accès aux Données Client par Hyland. Les administrateurs du Client contrôlent l'accès de ses propres utilisateurs, leurs autorisations et la rétention des Données Client dans la mesure où de tels contrôles sont disponibles pour le Client en ce qui concerne le Service Cloud Hyland.
VII. Limites du Système.
a. Hyland n’encourt aucune responsabilité du fait des composants du système qui ne font pas partie de la Plateforme Cloud Hyland, en ce compris, les périphériques réseau, la connectivité réseau, les postes de travail, les serveurs et les logiciels détenus et exploités par le Client ou tiers. Hyland peut – à sa discrétion - fournir un support pour ces composants.
b. Les procédés auxquels il est fait recours au sein de la Plateforme Cloud Hyland sont limités à ceux qui sont exécutés par un salarié de Hyland (ou un tiers autorisé par Hyland) ou ceux qui sont exécutés dans les limites du système établi de Hyland, dans leur ensemble. Cela comprend, sans que cette liste soit exhaustive, l'installation de matériel(s), l'installation de logiciel(s), la réplication de données, la sécurité des données et les procédés d'authentification.
c. Nonobstant ce qui précède, certains procédés commerciaux peuvent s’affranchir de ces limites, dans la mesure où une ou plusieurs tâches sont exécutées hors des limites du système établi par Hyland pour la Plateforme Cloud Hyland, qu’elles soient réalisées par des individus n’étant pas des salariés de Hyland (ou des tiers autorisés par Hyland), ou qu’elles le soient sur le fondement de demandes écrites du Client. Dans un tel cas, Hyland fournit un support pour de tels procédés sous réserve qu’ils soient exécutés dans les limites du système établi de Hyland ; Hyland n’ayant aucune obligation de fournir un tel support dans le cas où les procédés sont exécutés en dehors des limites du système mis en place par Hyland. Hyland se réserve toutefois le droit, à sa discrétion, de fournir un support limité pour les procédés exécutés en dehors des limites de système établies pour la Plateforme Cloud Hyland. Les process commerciaux s’affranchissant des limites susvisées sont notamment, et sans que cette liste soit exhaustive, des changements de configuration du Service Cloud Hyland, des traitements réalisés dans le Service Cloud Hyland, l'autorisation de l'utilisateur et les transferts de fichiers.
VIII. Cryptage.
a. Les Données Client ne doivent être versées au Service Cloud Hyland que dans un format crypté, par exemple, de type SFTP, TLS/SSL, ou toute autre méthode équivalente.
b. Les Données Client doivent être cryptées durant leur stockage.
c. Lorsque l'utilisation de la fonctionnalité de cryptage est contrôlée ou modifiée par le Client, celui-ci en assume seul les risques associés.
IX. Sécurité Physique et de l'Environnement.
a. La Plateforme Cloud Hyland utilise des data centers ou des fournisseurs de services tiers qui ont démontré leur conformité avec une ou plusieurs des normes suivantes (ou objectivement similaires) : Organisation internationale de normalisation (« ISO ») 27001 et/ou rapports de l'American Institute of Certified Public Accountants (« AICPA ») sur les contrôles des organisations de services (« SOC »). Ces fournisseurs fournissent la connexion Internet, la sécurité physique, l'alimentation et les systèmes environnementaux ainsi que d'autres services pour la Plateforme Cloud Hyland.
b. Hyland utilise une architecture et des technologies conçues pour promouvoir à la fois la sécurité et une haute disponibilité.
X. Sécurité des Opérations.
a. Maintien de procédures d'exploitation documentées du cloud Hyland.
b. Maintien de contrôles de gestion des changements visant à s'assurer que les changements apportés aux systèmes de production du Service Cloud Hyland par Hyland sont correctement autorisés et examinés avant leur mise en œuvre. Le Client est seul responsable – avant toute utilisation du Service Cloud Hyland en mode production – de l’évaluation de tous changements de configuration, changements d’authentification et mises à niveau qu’il met en œuvre ou que Hyland met en œuvre à sa demande. Le Client peut, sous réserve d’une demande écrite (par exemple, par e-mail ou tout autre moyen de communication fourni par Hyland) adressée par l’un des Administrateurs de Sécurité du Client (un « ASC », tel que désigné par le Client ou au sein d’une Proposition de Services) et décrivant le(s) changement(s) attendu(s), solliciter Hyland afin qu’elle mette en œuvre celui/ceux-ci en son nom. Dans le cas où ceux-ci sont susceptibles d’impacter l’accès du Client au Service Cloud Hyland, Hyland effectue ces changements de configuration programmés pendant une fenêtre de maintenance planifiée. Dans les autres cas, Hyland se réserve le droit d’effectuer ces changements de configuration pendant les heures normales de travail.
c. Surveillance des niveaux d'utilisation et de capacité au sein de la Plateforme Cloud Hyland afin de planifier de manière adéquate et proactive une augmentation future.
d. Utilisation de technologies de protection contre les virus et les logiciels malveillants, configurées pour répondre aux normes communes reconnues par l’industrie conçues pour protéger les Données Client et les équipements situés dans la Plateforme Cloud Hyland contre les attaques par virus ou tout autre charge associée à des programmes malveillants.
e. Mise en œuvre de plans de continuité et de reprise de l’activité après sinistre. Ceux-ci comprendront la réplication des Données Client sur un site secondaire.
f. Maintien d’un process de journalisation du système et de la sécurité afin de capturer les registres du système jugés critiques par Hyland. Ces registres sont conservés pendant au moins six (6) mois et examinés sur une base périodique.
g. Maintien des exigences de renforcement du système et des normes de configuration pour les composants déployés au sein de la Plateforme Cloud Hyland. Hyland s'assure que les serveurs, les systèmes d'exploitation et les logiciels de support utilisés dans la Plateforme Cloud Hyland reçoivent tous les correctifs de sécurité critiques et élevés en temps opportun, mais en aucun cas plus de quatre-vingt-dix (90) jours après leur publication, sous réserve de ce qui suit. Dans le cas où un correctif de sécurité, tel que susvisé, affecterait le Service Cloud Hyland de manière substantielle, Hyland s’efforce de mettre en œuvre des contrôles compensatoires dans l’attente de la disponibilité d’un correctif de sécurité n'affectant pas de manière substantielle le Service Cloud Hyland.
h. Réalisation de scans ou analyses de vulnérabilité de la Plateforme Cloud Hyland, a minima une (1) fois par trimestre, et réalisation d’opérations visant à remédier à toutes les vulnérabilités critiques et élevées identifiées conformément aux procédures de gestion des correctifs.
i. Réalisation de tests de pénétration de la Plateforme Hyland Cloud, a minima annuellement.
XI. Sécurité des Communications
a. Mise en œuvre de contrôles de sécurité de la Plateforme Hyland Cloud afin de protéger les ressources documentaires au sein de la Plateforme Hyland Cloud.
b. Lorsque cela est pris en charge, et lors de la mise en œuvre du Service Cloud Hyland, puis une (1) fois par période annuelle, le Client peut demander à Hyland de limiter l'accès au Service Cloud Hyland à une liste d'adresses IP prédéfinies, et ce sans frais supplémentaires.
XII. Relations Avec les Fournisseurs. Maintien d’un Programme de Gestion des Fournisseurs pour les fournisseurs critiques de Hyland. Ce programme garantit que les fournisseurs critiques sont évalués annuellement.
XIII. Incident de Sécurité.
a. Emploi des normes de réponse aux incidents basées sur les normes industrielles applicables, telles que ISO 27001:2013 et « National Institute for Standards and Technology » (“NIST »), afin de maintenir les composants de sécurité de l’information de l'environnement du Service Cloud Hyland.
b. Les réponses aux incidents susvisés suivent la procédure de réponse aux incidents documentée par Hyland, laquelle comprend la phase de déclenchement de l'incident, la phase d'évaluation, la phase d'escalade, la phase de réponse, la phase de récupération, la phase de désescalade et la phase d'examen post-incident.
c. Lorsque Hyland détermine que le Service Cloud Hyland du Client a été négativement impacté par un incident de sécurité, Hyland fournit un résumé de l'analyse des causes profondes de l’incident. La notification de ce résumé ne sera pas retardée de manière déraisonnable, mais n’interviendra qu’après la mise en place des actions correctives initiales visant à contenir la menace de sécurité ou stabiliser le Service Cloud Hyland.
d. L'analyse des causes profondes de l’incident comprend la durée de l'événement, sa résolution, le résumé technique, les problèmes en suspens et le suivi, y compris les mesures que le Client doit prendre afin d'éviter d'autres problèmes. Les informations contenues dans le Service Cloud Hyland, en ce compris les données nécessitant des mesures de confidentialité et de sécurité additionnelles (en ce compris celles d’autres clients touchés par l’incident), ne sont pas divulguées publiquement. Le Client peut, s’il nécessite des détails supplémentaires sur un incident, en faire la demande à l’équipe de support Hyland GCS, laquelle est traitée au cas par cas. La procédure de divulgation d'informations peut nécessiter une évaluation sur site, afin de protéger la confidentialité et la sécurité des informations demandées.
e. Hyland notifie le Client d'un Incident de Sécurité dans les quarante-huit (48) heures. Un « Incident de Sécurité » désigne le cas où Hyland identifie une divulgation réelle de Données Client, non cryptées, à une personne ou entité non autorisée, et qui compromet la sécurité, la confidentialité ou l'intégrité des Données Client.
XIV. Aspects de la Gestion de la Continuité des Activités liés à la Sécurité de l'Information.
a. Maintien d’un plan de continuité de l’activité et de reprise après sinistre.
b. Révision et évaluation annuelle du plan susvisé.
XV. Données Agrégées.
a. Hyland est propriétaire de toutes les données d'enregistrement et de facturation du Client et de l'Utilisateur collectées et utilisées par Hyland, requises pour la configuration, l'utilisation du Service Cloud Hyland, ainsi que pour la facturation relative à ce dernier (les « Informations de Compte ») et de toutes les données agrégées, anonymisées et statistiques dérivées de l'utilisation et du fonctionnement du Service Cloud Hyland, en ce compris, mais sans s’y limiter, le nombre d'enregistrements dans le Service Cloud Hyland, le nombre et le type de transactions, les configurations , les rapports traités dans le cadre du Service Cloud Hyland, ainsi que les résultats de performance du Service Cloud Hyland (les « Données Agrégées »).
b. Hyland se réserve le droit d’utiliser les Informations de Compte et les Données Agrégées à des fins commerciales. Afin de lever toute ambiguïté, il est précisé que les Informations de Compte et les Données Agrégées ne comprennent pas les Données Client.
XVI. Enquêtes de Sécurité.
a. Contrôle de la conformité avec le programme de sécurité de l'information, constitué par des évaluations internes périodiques. Les résultats sont partagés avec la direction de Hyland et tout écart est suivi jusqu'à sa remédiation.
b. Maintien d’un programme d'audit externe périodique. Les attestations complètes, telles que les rapports SOC 2 disponibles, sont fournies - sur demande écrite – au Client.
c. Dans la limite d’une (1) fois par an (mais pas plus d'une fois au cours d'une période de 12 mois), le Client peut réaliser un audit (qui comprend des évaluations, des questionnaires, des revues guidées ou d'autres demandes de validation des contrôles de sécurité de Hyland) (chacun une « Enquête de Sécurité ») des opérations de Hyland dans le cadre de la fourniture et du support du Service Cloud Hyland auquel il a souscrit, sous réserve d’une notification préalable écrite à Hyland et des critères suivants à condition que le Client informe à l'avance Hyland de son désir de mener une telle Enquête de Sécurité et que l'Enquête de Sécurité proposée ne chevauche pas, ou couvrir autrement les mêmes informations ou des informations similaires que, ou portée de: (1) tout contrôle déjà prévu par un audit ou une évaluation externe déjà effectué par Hyland, tel qu'un rapport SOC 2, ISO 27001 ou tout autre audit ou évaluation similaire mis à la disposition du Client à la demande du Client; ou ( 2 ) tout contenu déjà fourni par Hyland via son SIG, CAIQ ou un questionnaire similaire rempli qui est mis à la disposition du Client sur demande: (1) Hyland et le Client doivent s'entendre mutuellement sur le calendrier, la portée et les critères de cette Enquête de Sécurité, qui, sous réserve de ce qui précède, peut inclure l'achèvement des questionnaires fournis par le Client; (2) la documentation confidentielle et restreinte, telle que les politiques, pratiques et procédures internes de Hyland, y compris toute documentation demandée par le client qui ne peut pas être retirée des locaux de Hyland en raison de limitations physiques ou de restrictions de politique ne sera pas fournie à l'extérieur ou retirée des locaux de Hyland et de tels examens doit être effectuée sur place au siège social de Hyland dans l'Ohio ou par le biais d'une capture d'écran sécurisée qui peut être organisée par Hyland pour interdire tout type de copie ou de capture d'écran; ( 3 ) Le client comprend et accepte que Hyland ne permettra pas l'accès aux systèmes ou appareils internes utilisés pour héberger ou prendre en charge les offres de Hyland; ( 4 ) dans la mesure où le client souhaite engager un tiers pour effectuer une telle Enquête de Sécurité, Hyland doit approuver ce tiers par écrit à l'avance, Le client doit amener ce tiers à conclure un accord de non-divulgation avec Hyland et à accepter de respecter les normes de sécurité de Hyland, et le client doit gérer l'engagement avec le tiers, s'assurer que le tiers comprend la portée de l'Enquête de Sécurité comme convenu d'un commun accord entre Hyland et le client et comment le client utilise le service Hyland Cloud, et, et (b) le Client paiera à Hyland les montants requis par Hyland en lien avec les Prestations de Services (y compris les frais et dépenses remboursables ) fournies dans le cadre d’ Enquête de Sécurité (aux tarifs publics de Hyland alors en vigueur). Le cas échéant, Hyland fournit dans une mesure raisonnable un accès privé au siège social de Hyland, Ohio, U.S., pour analyser des données et des réunions. Sous réserve d’un demande écrite préalable raisonnable, les parties peut conviennent de rendre disponible les salariés ou prestataires dont l’intervention est nécessaire en vue d’entretiens dans le cadre de réunions physiques ou par téléphone, pendant la durée de l’Enquête de Sécurité, ce, aux seuls frais du Client. Le Client s’interdit, et le client interdira chaque tiers Enquête de Sécurité de distribuer ou de publier les résultats de l’ Enquête de Sécurité à tout tiers, sans le consentement préalable écrit de Hyland. Nonobstant toute disposition contraire de la présente entente, rien dans la présente entente (, y compris cette section ), n'obligera Hyland ou l'une de ses sociétés affiliées à divulguer des informations soumises au privilège avocat-client.
Effective June 17th 2023
DownloadAPÊNDICE DE SEGURANÇA DE SAAS
Introdução: A Hyland mantém e gerencia um programa abrangente de segurança por escrito para cobertura do Serviço de Nuvem da Hyland projetado para proteger: (a) a segurança e integridade dos Dados do Cliente; (b) contra ameaças e perigos que possam afetar negativamente os Dados do Cliente; e (c) contra acesso não autorizado aos Dados do Cliente, cujo programa inclui o seguinte:
Effective December 7th 2022 to June 17th 2023
DownloadTable of Contents
- Risk Management.
- Conducting an annual risk assessment designed to identify threats and vulnerabilities in the administrative, physical, legal, regulatory, and technical safeguards used to protect the Hyland Cloud Service.
- Maintaining a documented risk remediation process to assign ownership of identified risks, establish remediation plans and timeframes, and provide for periodic monitoring of progress.
- Information Security Program.
- Maintaining a documented comprehensive Hyland Cloud Service information security program. This program will include policies and procedures based on industry standard practices, which may include ISO 27001/27002, or other equivalent standards.
- Such information security program shall include, as applicable: (i) adequate physical and cyber security where Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to Hyland personnel employment.
- These policies will be reviewed and updated by Hyland management annually.
- Organization of Information Security. Assigning security responsibilities to appropriate Hyland individuals or groups to facilitate protection of the Hyland Cloud Service and associated assets.
- Human Resources Security.
- Hyland employees undergo comprehensive screening during the hiring process. Background checks and reference validation will be performed to determine whether candidate qualifications are appropriate for the proposed position. Subject to any restrictions imposed by applicable law and based on jurisdiction, these background checks include criminal background checks, employment validation, and education verification as applicable.
- Ensuring all Hyland employees are subject to confidentiality and non-disclosure commitments before access is provisioned to the Hyland Cloud Service or Customer Data.
- Ensuring applicable Hyland employees receive security awareness training designed to provide such employees with information security knowledge to provide for the security, availability, and confidentiality of Customer Data.
- Upon Hyland employee separation or change in roles, Hyland shall ensure any Hyland employee access to the Hyland Cloud Service is revoked in a timely manner and all applicable Hyland assets, both information and physical, are returned.
- Asset Management.
- Maintaining asset and information management policies and procedures. This includes ownership of assets, an inventory of assets, classification guidelines, and handling standards pertaining to Hyland assets.
- Maintaining media handling procedures to ensure media containing Customer Data as part of the Hyland Cloud Service is encrypted and stored in a secure location subject to strict physical access controls.
- When a Hyland Cloud Service storage device has reached the end of its useful life, procedures include a decommissioning process that is designed to prevent Customer Data from being exposed to unauthorized individuals using the techniques recommended by NIST to destroy data as part of the decommissioning process.
- If a Hyland storage device is unable to be decommissioned using these procedures, the device will be virtually shredded, degaussed, purged/wiped, or physically destroyed in accordance with industry-standard practices.
- Access Controls.
- Maintaining a logical access policy and corresponding procedures. The logical access procedures will define the request, approval and access provisioning process for Hyland personnel. The logical access process will restrict Hyland user (local and remote) access based on Hyland user job function (role/profile based, appropriate access) for applications and databases. Hyland user access recertification to determine access and privileges will be performed periodically. Procedures for onboarding and offboarding Hyland personnel users in a timely manner will be documented. Procedures for Hyland personnel user inactivity threshold leading to account suspension and removal threshold will be documented.
- Limiting Hyland’s access to Customer Data to its personnel who have a need to access Customer Data as a condition to Hyland’s performance of the services under this Agreement. Hyland shall utilize the principle of “least privilege” and the concept of “minimum necessary” when determining the level of access for all Hyland users to Customer Data. Hyland shall require strong passwords subject to complexity requirements and periodic rotation and the use of multi-factor authentication.
- Ensuring strict access controls are in place for Customer Data access by Hyland. Customer administrators control its user access, user permissions, and Customer Data retention to the extent such controls are available to Customer with respect to the Hyland Cloud Service.
- System Boundaries.
- Hyland is not responsible for any system components that are not within the Hyland Cloud Platform, including network devices, network connectivity, workstations, servers, and software owned and operated by the Customer or other third parties. Hyland may provide support for these components at its reasonable discretion.
- The processes executed within the Hyland Cloud Platform are limited to those that are executed by a Hyland employee (or Hyland authorized third party) or processes that are executed within Hyland’s established system boundaries, in whole. This includes, but is not limited to, hardware installation, software installation, data replication, data security, and authentication processes.
- Certain business processes may cross these boundaries, meaning one or more tasks are executed outside of Hyland’s established system boundaries for the Hyland Cloud Platform, one or more tasks are executed by individuals who are not Hyland personnel (or authorized third-parties), or one or more tasks are executed based on written requests placed by Customer. In such event, Hyland will provide support for such processes to the extent they occur within Hyland’s established system boundaries, but Hyland is not responsible for providing support for such processes to the extent they occur outside of such established system boundaries. At its reasonable discretion, Hyland may provide limited support for processes that occur outside such established system boundaries for the Hyland Cloud Platform. Examples of business processes that cross these boundaries include, but are not limited to, Hyland Cloud Service configuration changes, processing that occurs within the Hyland Cloud Service, user authorization, and file transfers.
- Encryption.
- Customer Data shall only be uploaded to the Hyland Cloud Services in an encrypted format such as via SFTP, TLS/SSL, or other equivalent method.
- Customer Data shall be encrypted at rest.
- Where use of encryption functionality may be controlled or modified by Customer, in the event Customer elects to modify the use of or turn off any encryption functionality, Customer does so at its own risk.
- Physical and Environment Security.
- The Hyland Cloud Platform uses data centers or third party service providers who have demonstrated compliance with one or more of the following standards (or a reasonable equivalent): International Organization for Standardization (“ISO”) 27001 and/or American Institute of Certified Public Accountants (“AICPA”) Service Organization Controls (“SOC”) Reports for Services Organizations. These providers provide Internet connectivity, physical security, power, and environmental systems and other services for the Hyland Cloud Platform.
- Hyland uses architecture and technologies designed to promote both security and high availability.
- Operations Security.
- Maintaining documented Hyland cloud operating procedures.
- Maintaining change management controls to ensure changes to Hyland Cloud Service production systems made by Hyland are properly authorized and reviewed prior to implementation. Customer is responsible for testing all configuration changes, authentication changes and upgrades implemented by Customer or implemented by Hyland at the request of Customer prior to production use of the Hyland Cloud Service. In cases where the Customer relies upon Hyland to implement changes on its behalf, a written request describing the change must be submitted (e.g. an e-mail, or another method provided by Hyland) by Customer’s designated Customer Security Administrators (“CSAs”) or set forth in a Services Proposal. Hyland will make scheduled configuration changes that are expected to impact Customer access to their Hyland Cloud Service during a planned maintenance window. Hyland may make configuration changes that are not expected to impact Customer during normal business hours.
- Monitoring usage and capacity levels within the Hyland Cloud Platform to adequately and proactively plan for future growth.
- Utilizing virus and malware protection technologies, which are configured to meet common industry standards designed to protect the Customer Data and equipment located within the Hyland Cloud Platform from virus infections or similar malicious payloads.
- Implementing disaster recovery and business continuity procedures. These will include replication of Customer Data to a secondary location.
- Maintaining a system and security logging process to capture system logs deemed critical by Hyland. These logs shall be maintained for at least six months and reviewed on a periodic basis.
- Maintaining system hardening requirements and configuration standards for components deployed within the Hyland Cloud Platform. Ensuring servers, operating systems, and supporting software used in the Hyland Cloud Platform receive all Critical and High security patches within a timely manner, but in no event more than 90 days after release, subject to the next sentence. In the event any such security patch would materially adversely affect the Hyland Cloud Service, then Hyland will use reasonable efforts to implement compensating controls until a security patch is available that would not materially adversely affect the Hyland Cloud Service.
- Conducting Hyland Cloud Platform vulnerability scans or analysis on at least a quarterly basis and remediate all critical and high vulnerabilities identified in accordance with its patch management procedures.
- Conducting Hyland Cloud Platform penetration tests at least annually.
- Communications Security
- Implementing Hyland Cloud Platform security controls to protect information resources within the Hyland Cloud Platform.
- When supported, upon implementation and once annually thereafter, Customer may request Hyland limit access to Customer’s Hyland Cloud Service to a list of pre-defined IP addresses at no additional cost.
- Supplier Relationships. Maintaining a Vendor Management Program for its critical vendors. This program will ensure critical vendors are evaluated on an annual basis.
- Security Incident.
- Employing incident response standards that are based upon applicable industry standards, such as ISO 27001:2013 and National Institute for Standards and Technology (“NIST”), to maintain the information security components of the Hyland Cloud Service environment.
- Responses to these incidents follow the Hyland documented incident response sequence. This sequence includes the incident trigger phase, evaluation phase, escalation phase, response phase, recovery phase, de-escalation phase, and post-incident review phase.
- If Hyland has determined Customer’s Hyland Cloud Service has been negatively impacted by a security incident, Hyland will deliver a root cause analysis summary. Such notice will not be unreasonably delayed, but will occur after initial corrective actions have been taken to contain the security threat or stabilize the Hyland Cloud Service.
- The root cause analysis will include the duration of the event, resolution, technical summary, outstanding issues, and follow-up, including steps Customer needs to take in order to prevent further issues. Hyland Cloud Service information including data elements that require additional confidentiality and security measures (including that of other customers impacted in the event) will not be publicly disclosed. If Customer needs additional details of an incident, a request to the Hyland GCS Support team must be submitted and handled on a case by case basis. The release of information process may require an on-site review to protect the confidentiality and security of the requested information.
- Hyland will notify Customer of a Security Incident within 48 hours. A “Security Incident” means a determination by Hyland of an actual disclosure of unencrypted Customer Data to an unauthorized person or entity that compromises the security, confidentiality, or integrity of the Customer Data.
- Information Security Aspects of Business Continuity Management.
- Maintaining a business continuity and disaster recovery plan.
- Reviewing and testing this plan annually.
- Aggregated Data.
- Hyland owns all Customer and User registration and billing data collected and used by Hyland that is required for user set-up, use and billing for the Hyland Cloud Service (“Account Information”) and all aggregated, anonymized and statistical data derived from the use and operation of the Hyland Cloud Service, including without limitation, the number of records in the Hyland Cloud Service, the number and types of transactions, configurations, and reports processed as part of the Hyland Cloud Service and the performance results of the Hyland Cloud Service (the “Aggregated Data”).
- Hyland may utilize the Account Information and Aggregated Data for purposes of operating Hyland’s business. For clarity, Account Information and Aggregated Data does not include Customer Data.
- Security Inquiries.
- Monitoring its compliance with its information security program. This includes periodic internal reviews. Results are shared with Hyland leadership and deviations tracked through to remediation.
- Maintaining a periodic external audit program. Completed attestations, such as available SOC 2 reports, are provided to Customer upon written request.
- Customer may conduct audits (which includes assessments, questionnaires, guided reviews or other requests to validate Hyland’s security controls) (each a “Security Inquiry”) of Hyland’s operations that participate in the ongoing delivery and support of the Hyland Cloud Service purchased by Customer on an annual basis (but no more than once during any 12-month period); provided, that Customer provides Hyland with advance written notice of its desire to conduct such Security Inquiry and the proposed Security Inquiry does not overlap with, or otherwise cover the same or similar information as, or scope of: (1) any controls already provided for by an external audit or assessment already performed by Hyland, such as a SOC 2 report, ISO 27001 or other similar audit or assessment that is made available to Customer upon Customer’s request; or (2) any content already provided by Hyland through its completed SIG, CAIQ or similar questionnaire that is made available to Customer upon request. For each Security Inquiry, (1) Hyland and Customer must mutually agree upon the timing, scope, and criteria of such Security Inquiry, which, subject to the foregoing, may include the completion of questionnaires supplied by Customer; (2) confidential and restricted documentation, such as Hyland internal policies, practices, and procedures, including any documentation requested by Customer that cannot be removed from Hyland’s premises as a result of physical limitations or policy restrictions will not be provided externally or removed from Hyland’s premises and such reviews must be conducted onsite at Hyland’s corporate headquarters in Ohio or through a secure screenshare which may be arranged by Hyland to prohibit any type of copying or screen shots; (3) Customer understands and agrees that Hyland will not permit access to internal systems or devices used to host or support Hyland’s offerings; (4) to the extent Customer desires to engage a third party to perform such Security Inquiry, Hyland must approve of such third party in writing in advance, Customer shall cause such third party to enter into a Non-Disclosure Agreement with Hyland and agree to abide by Hyland’s security standards, and Customer shall manage the engagement with the third party, ensuring the third party understands the scope of the Security Inquiry as mutually agreed upon between Hyland and Customer and how Customer utilizes the Hyland Cloud Service; and (5) Customer shall pay Hyland fees (at Hyland’s standard rates) for the Professional Services (including any out-of-pocket costs and expenses) that are required or requested of Hyland in connection with such Security Inquiry. Where necessary, Hyland will provide private and reasonable accommodation at Hyland’s corporate headquarters in Ohio for data analysis and meetings. Upon reasonable advance written request, Hyland and Customer may mutually agree to make necessary employees or contractors available for interviews in person or on the phone during such Security Inquiry at Customer’s cost and expense. Customer is prohibited, , and Customer shall prohibit each third party Security Inquiry from distributing or publishing the results of such Security Inquiry to any third party without Hyland’s prior written approval. Notwithstanding anything to the contrary within this Agreement, nothing in this Agreement (including this section) will require Hyland or any of its affiliates to disclose information that is subject to attorney-client privilege.
Effective November 30th 2022 to December 7th 2022
DownloadTable of Contents
- Risk Management.
- Conducting an annual risk assessment designed to identify threats and vulnerabilities in the administrative, physical, legal, regulatory, and technical safeguards used to protect the Hyland Cloud Service.
- Maintaining a documented risk remediation process to assign ownership of identified risks, establish remediation plans and timeframes, and provide for periodic monitoring of progress.
- Information Security Program.
- Maintaining a documented comprehensive Hyland Cloud Service information security program. This program will include policies and procedures based on industry standard practices, which may include ISO 27001/27002, or other equivalent standards.
- Such information security program shall include, as applicable: (i) adequate physical and cyber security where Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to Hyland personnel employment.
- These policies will be reviewed and updated by Hyland management annually.
- Organization of Information Security. Assigning security responsibilities to appropriate Hyland individuals or groups to facilitate protection of the Hyland Cloud Service and associated assets.
- Human Resources Security.
- Hyland employees undergo comprehensive screening during the hiring process. Background checks and reference validation will be performed to determine whether candidate qualifications are appropriate for the proposed position. Subject to any restrictions imposed by applicable law and based on jurisdiction, these background checks include criminal background checks, employment validation, and education verification as applicable.
- Ensuring all Hyland employees are subject to confidentiality and non-disclosure commitments before access is provisioned to the Hyland Cloud Service or Customer Data.
- Ensuring applicable Hyland employees receive security awareness training designed to provide such employees with information security knowledge to provide for the security, availability, and confidentiality of Customer Data.
- Upon Hyland employee separation or change in roles, Hyland shall ensure any Hyland employee access to the Hyland Cloud Service is revoked in a timely manner and all applicable Hyland assets, both information and physical, are returned.
- Asset Management.
- Maintaining asset and information management policies and procedures. This includes ownership of assets, an inventory of assets, classification guidelines, and handling standards pertaining to Hyland assets.
- Maintaining media handling procedures to ensure media containing Customer Data as part of the Hyland Cloud Service is encrypted and stored in a secure location subject to strict physical access controls.
- When a Hyland Cloud Service storage device has reached the end of its useful life, procedures include a decommissioning process that is designed to prevent Customer Data from being exposed to unauthorized individuals using the techniques recommended by NIST to destroy data as part of the decommissioning process.
- If a Hyland storage device is unable to be decommissioned using these procedures, the device will be virtually shredded, degaussed, purged/wiped, or physically destroyed in accordance with industry-standard practices.
- Access Controls.
- Maintaining a logical access policy and corresponding procedures. The logical access procedures will define the request, approval and access provisioning process for Hyland personnel. The logical access process will restrict Hyland user (local and remote) access based on Hyland user job function (role/profile based, appropriate access) for applications and databases. Hyland user access recertification to determine access and privileges will be performed periodically. Procedures for onboarding and offboarding Hyland personnel users in a timely manner will be documented. Procedures for Hyland personnel user inactivity threshold leading to account suspension and removal threshold will be documented.
- Limiting Hyland’s access to Customer Data to its personnel who have a need to access Customer Data as a condition to Hyland’s performance of the services under this Agreement. Hyland shall utilize the principle of “least privilege” and the concept of “minimum necessary” when determining the level of access for all Hyland users to Customer Data. Hyland shall require strong passwords subject to complexity requirements and periodic rotation and the use of multi-factor authentication.
- Ensuring strict access controls are in place for Customer Data access by Hyland. Customer administrators control its user access, user permissions, and Customer Data retention to the extent such controls are available to Customer with respect to the Hyland Cloud Service.
- System Boundaries.
- Hyland is not responsible for any system components that are not within the Hyland Cloud Platform, including network devices, network connectivity, workstations, servers, and software owned and operated by the Customer or other third parties. Hyland may provide support for these components at its reasonable discretion.
- The processes executed within the Hyland Cloud Platform are limited to those that are executed by a Hyland employee (or Hyland authorized third party) or processes that are executed within Hyland’s established system boundaries, in whole. This includes, but is not limited to, hardware installation, software installation, data replication, data security, and authentication processes.
- Certain business processes may cross these boundaries, meaning one or more tasks are executed outside of Hyland’s established system boundaries for the Hyland Cloud Platform, one or more tasks are executed by individuals who are not Hyland personnel (or authorized third-parties), or one or more tasks are executed based on written requests placed by Customer. In such event, Hyland will provide support for such processes to the extent they occur within Hyland’s established system boundaries, but Hyland is not responsible for providing support for such processes to the extent they occur outside of such established system boundaries. At its reasonable discretion, Hyland may provide limited support for processes that occur outside such established system boundaries for the Hyland Cloud Platform. Examples of business processes that cross these boundaries include, but are not limited to, Hyland Cloud Service configuration changes, processing that occurs within the Hyland Cloud Service, user authorization, and file transfers.
- Encryption.
- Customer Data shall only be uploaded to the Hyland Cloud Services in an encrypted format such as via SFTP, TLS/SSL, or other equivalent method.
- Customer Data shall be encrypted at rest.
- Where use of encryption functionality may be controlled or modified by Customer, in the event Customer elects to modify the use of or turn off any encryption functionality, Customer does so at its own risk.
- Physical and Environment Security.
- The Hyland Cloud Platform uses data centers or third party service providers who have demonstrated compliance with one or more of the following standards (or a reasonable equivalent): International Organization for Standardization (“ISO”) 27001 and/or American Institute of Certified Public Accountants (“AICPA”) Service Organization Controls (“SOC”) Reports for Services Organizations. These providers provide Internet connectivity, physical security, power, and environmental systems and other services for the Hyland Cloud Platform.
- Hyland uses architecture and technologies designed to promote both security and high availability.
- Operations Security.
- Maintaining documented Hyland cloud operating procedures.
- Maintaining change management controls to ensure changes to Hyland Cloud Service production systems made by Hyland are properly authorized and reviewed prior to implementation. Customer is responsible for testing all configuration changes, authentication changes and upgrades implemented by Customer or implemented by Hyland at the request of Customer prior to production use of the Hyland Cloud Service. In cases where the Customer relies upon Hyland to implement changes on its behalf, a written request describing the change must be submitted (e.g. an e-mail, or another method provided by Hyland) by Customer’s designated Customer Security Administrators (“CSAs”) or set forth in a Services Proposal. Hyland will make scheduled configuration changes that are expected to impact Customer access to their Hyland Cloud Service during a planned maintenance window. Hyland may make configuration changes that are not expected to impact Customer during normal business hours.
- Monitoring usage and capacity levels within the Hyland Cloud Platform to adequately and proactively plan for future growth.
- Utilizing virus and malware protection technologies, which are configured to meet common industry standards designed to protect the Customer Data and equipment located within the Hyland Cloud Platform from virus infections or similar malicious payloads.
- Implementing disaster recovery and business continuity procedures. These will include replication of Customer Data to a secondary location.
- Maintaining a system and security logging process to capture system logs deemed critical by Hyland. These logs shall be maintained for at least six months and reviewed on a periodic basis.
- Maintaining system hardening requirements and configuration standards for components deployed within the Hyland Cloud Platform. Ensuring servers, operating systems, and supporting software used in the Hyland Cloud Platform receive all Critical and High security patches within a timely manner, but in no event more than 90 days after release, subject to the next sentence. In the event any such security patch would materially adversely affect the Hyland Cloud Service, then Hyland will use reasonable efforts to implement compensating controls until a security patch is available that would not materially adversely affect the Hyland Cloud Service.
- Conducting Hyland Cloud Platform vulnerability scans or analysis on at least a quarterly basis and remediate all critical and high vulnerabilities identified in accordance with its patch management procedures.
- Conducting Hyland Cloud Platform penetration tests at least annually.
- Communications Security
- Implementing Hyland Cloud Platform security controls to protect information resources within the Hyland Cloud Platform.
- When supported, upon implementation and once annually thereafter, Customer may request Hyland limit access to Customer’s Hyland Cloud Service to a list of pre-defined IP addresses at no additional cost.
- Supplier Relationships. Maintaining a Vendor Management Program for its critical vendors. This program will ensure critical vendors are evaluated on an annual basis.
- Security Incident.
- Employing incident response standards that are based upon applicable industry standards, such as ISO 27001:2013 and National Institute for Standards and Technology (“NIST”), to maintain the information security components of the Hyland Cloud Service environment.
- Responses to these incidents follow the Hyland documented incident response sequence. This sequence includes the incident trigger phase, evaluation phase, escalation phase, response phase, recovery phase, de-escalation phase, and post-incident review phase.
- If Hyland has determined Customer’s Hyland Cloud Service has been negatively impacted by a security incident, Hyland will deliver a root cause analysis summary. Such notice will not be unreasonably delayed, but will occur after initial corrective actions have been taken to contain the security threat or stabilize the Hyland Cloud Service.
- The root cause analysis will include the duration of the event, resolution, technical summary, outstanding issues, and follow-up, including steps Customer needs to take in order to prevent further issues. Hyland Cloud Service information including data elements that require additional confidentiality and security measures (including that of other customers impacted in the event) will not be publicly disclosed. If Customer needs additional details of an incident, a request to the Hyland GCS Support team must be submitted and handled on a case by case basis. The release of information process may require an on-site review to protect the confidentiality and security of the requested information.
- Hyland will notify Customer of a Security Incident within 48 hours. A “Security Incident” means a determination by Hyland of an actual disclosure of unencrypted Customer Data to an unauthorized person or entity that compromises the security, confidentiality, or integrity of the Customer Data.
- Information Security Aspects of Business Continuity Management.
- Maintaining a business continuity and disaster recovery plan.
- Reviewing and testing this plan annually.
- Aggregated Data.
- Hyland owns all Customer and User registration and billing data collected and used by Hyland that is required for user set-up, use and billing for the Hyland Cloud Service (“Account Information”) and all aggregated, anonymized and statistical data derived from the use and operation of the Hyland Cloud Service, including without limitation, the number of records in the Hyland Cloud Service, the number and types of transactions, configurations, and reports processed as part of the Hyland Cloud Service and the performance results of the Hyland Cloud Service (the “Aggregated Data”).
- Hyland may utilize the Account Information and Aggregated Data for purposes of operating Hyland’s business. For clarity, Account Information and Aggregated Data does not include Customer Data.
- Audit and Security Testing.
- Monitoring its compliance with its information security program. This includes periodic internal reviews. Results are shared with Hyland leadership and deviations tracked through to remediation.
- Maintaining a periodic external audit program. Completed attestations, such as available SOC 2 reports, are provided to Customer upon written request.
- Customer may conduct audits (which includes assessments, questionnaires, guided reviews or other requests to validate Hyland’s security controls) (each a “Security Inquiry”) of Hyland’s operations that participate in the ongoing delivery and support of the Hyland Cloud Service purchased by Customer on an annual basis (but no more than once during any 12-month period); provided, that Customer provides Hyland with advance written notice of its desire to conduct such Security Inquiry and the proposed Security Inquiry does not overlap with, or otherwise cover the same or similar information as, or scope of: (1) any controls already provided for by an external audit or assessment already performed by Hyland, such as a SOC 2 report, ISO 27001 or other similar audit or assessment that is made available to Customer upon Customer’s request; or (2) any content already provided by Hyland through its completed SIG, CAIQ or similar questionnaire that is made available to Customer upon request. For each Security Inquiry, (1) Hyland and Customer must mutually agree upon the timing, scope, and criteria of such Security Inquiry, which, subject to the foregoing, may include the completion of questionnaires supplied by Customer; (2) confidential and restricted documentation, such as Hyland internal policies, practices, and procedures, including any documentation requested by Customer that cannot be removed from Hyland’s premises as a result of physical limitations or policy restrictions will not be provided externally or removed from Hyland’s premises and such reviews must be conducted onsite at Hyland’s corporate headquarters in Ohio or through a secure screenshare which may be arranged by Hyland to prohibit any type of copying or screen shots; (3) Customer understands and agrees that Hyland will not permit access to internal systems or devices used to host or support Hyland’s offerings; (4) to the extent Customer desires to engage a third party to perform such Security Inquiry, Hyland must approve of such third party in writing in advance, Customer shall cause such third party to enter into a Non-Disclosure Agreement with Hyland and agree to abide by Hyland’s security standards, and Customer shall manage the engagement with the third party, ensuring the third party understands the scope of the Security Inquiry as mutually agreed upon between Hyland and Customer and how Customer utilizes the Hyland Cloud Service; and (5) Customer shall pay Hyland fees (at Hyland’s standard rates) for the Professional Services (including any out-of-pocket costs and expenses) that are required or requested of Hyland in connection with such Security Inquiry. Where necessary, Hyland will provide private and reasonable accommodation at Hyland’s corporate headquarters in Ohio for data analysis and meetings. Upon reasonable advance written request, Hyland and Customer may mutually agree to make necessary employees or contractors available for interviews in person or on the phone during such Security Inquiry at Customer’s cost and expense. Customer is prohibited, , and Customer shall prohibit each third party Security Inquiry from distributing or publishing the results of such Security Inquiry to any third party without Hyland’s prior written approval. Notwithstanding anything to the contrary within this Agreement, nothing in this Agreement (including this section) will require Hyland or any of its affiliates to disclose information that is subject to attorney-client privilege.
Effective February 2nd 2022 to November 30th 2022
DownloadTable of Contents
- Risk Management.
- Conducting an annual risk assessment designed to identify threats and vulnerabilities in the administrative, physical, legal, regulatory, and technical safeguards used to protect the Hyland Cloud Service.
- Maintaining a documented risk remediation process to assign ownership of identified risks, establish remediation plans and timeframes, and provide for periodic monitoring of progress.
- Information Security Program.
- Maintaining a documented comprehensive Hyland Cloud Service information security program. This program will include policies and procedures based on industry standard practices, which may include ISO 27001/27002, or other equivalent standards.
- Such information security program shall include, as applicable: (i) adequate physical and cyber security where Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to Hyland personnel employment.
- These policies will be reviewed and updated by Hyland management annually.
- Organization of Information Security. Assigning security responsibilities to appropriate Hyland individuals or groups to facilitate protection of the Hyland Cloud Service and associated assets.
- Human Resources Security.
- Hyland employees undergo comprehensive screening during the hiring process. Background checks and reference validation will be performed to determine whether candidate qualifications are appropriate for the proposed position. Subject to any restrictions imposed by applicable law and based on jurisdiction, these background checks include criminal background checks, employment validation, and education verification as applicable.
- Ensuring all Hyland employees are subject to confidentiality and non-disclosure commitments before access is provisioned to the Hyland Cloud Service or Customer Data.
- Ensuring applicable Hyland employees receive security awareness training designed to provide such employees with information security knowledge to provide for the security, availability, and confidentiality of Customer Data.
- Upon Hyland employee separation or change in roles, Hyland shall ensure any Hyland employee access to the Hyland Cloud Service is revoked in a timely manner and all applicable Hyland assets, both information and physical, are returned.
- Asset Management.
- Maintaining asset and information management policies and procedures. This includes ownership of assets, an inventory of assets, classification guidelines, and handling standards pertaining to Hyland assets.
- Maintaining media handling procedures to ensure media containing Customer Data as part of the Hyland Cloud Service is encrypted and stored in a secure location subject to strict physical access controls.
- When a Hyland Cloud Service storage device has reached the end of its useful life, procedures include a decommissioning process that is designed to prevent Customer Data from being exposed to unauthorized individuals using the techniques recommended by NIST to destroy data as part of the decommissioning process.
- If a Hyland storage device is unable to be decommissioned using these procedures, the device will be virtually shredded, degaussed, purged/wiped, or physically destroyed in accordance with industry-standard practices.
- Access Controls.
- Maintaining a logical access policy and corresponding procedures. The logical access procedures will define the request, approval and access provisioning process for Hyland personnel. The logical access process will restrict Hyland user (local and remote) access based on Hyland user job function (role/profile based, appropriate access) for applications and databases. Hyland user access recertification to determine access and privileges will be performed periodically. Procedures for onboarding and offboarding Hyland personnel users in a timely manner will be documented. Procedures for Hyland personnel user inactivity threshold leading to account suspension and removal threshold will be documented.
- Limiting Hyland’s access to Customer Data to its personnel who have a need to access Customer Data as a condition to Hyland’s performance of the services under this Agreement. Hyland shall utilize the principle of “least privilege” and the concept of “minimum necessary” when determining the level of access for all Hyland users to Customer Data. Hyland shall require strong passwords subject to complexity requirements and periodic rotation and the use of multi-factor authentication.
- Ensuring strict access controls are in place for Customer Data access by Hyland. Customer administrators control its user access, user permissions, and Customer Data retention to the extent such controls are available to Customer with respect to the Hyland Cloud Service.
- System Boundaries.
- Hyland is not responsible for any system components that are not within the Hyland Cloud Platform, including network devices, network connectivity, workstations, servers, and software owned and operated by the Customer or other third parties. Hyland may provide support for these components at its reasonable discretion.
- The processes executed within the Hyland Cloud Platform are limited to those that are executed by a Hyland employee (or Hyland authorized third party) or processes that are executed within Hyland’s established system boundaries, in whole. This includes, but is not limited to, hardware installation, software installation, data replication, data security, and authentication processes.
- Certain business processes may cross these boundaries, meaning one or more tasks are executed outside of Hyland’s established system boundaries for the Hyland Cloud Platform, one or more tasks are executed by individuals who are not Hyland personnel (or authorized third-parties), or one or more tasks are executed based on written requests placed by Customer. In such event, Hyland will provide support for such processes to the extent they occur within Hyland’s established system boundaries, but Hyland is not responsible for providing support for such processes to the extent they occur outside of such established system boundaries. At its reasonable discretion, Hyland may provide limited support for processes that occur outside such established system boundaries for the Hyland Cloud Platform. Examples of business processes that cross these boundaries include, but are not limited to, Hyland Cloud Service configuration changes, processing that occurs within the Hyland Cloud Service, user authorization, and file transfers.
- Encryption.
- Customer Data shall only be uploaded to the Hyland Cloud Services in an encrypted format such as via SFTP, TLS/SSL, or other equivalent method.
- Customer Data shall be encrypted at rest.
- Where use of encryption functionality may be controlled or modified by Customer, in the event Customer elects to modify the use of or turn off any encryption functionality, Customer does so at its own risk.
- Physical and Environment Security.
- The Hyland Cloud Platform uses data centers or third party service providers who have demonstrated compliance with one or more of the following standards (or a reasonable equivalent): International Organization for Standardization (“ISO”) 27001 and/or American Institute of Certified Public Accountants (“AICPA”) Service Organization Controls (“SOC”) Reports for Services Organizations. These providers provide Internet connectivity, physical security, power, and environmental systems and other services for the Hyland Cloud Platform.
- Hyland uses architecture and technologies designed to promote both security and high availability.
- Operations Security.
- Maintaining documented Hyland cloud operating procedures.
- Maintaining change management controls to ensure changes to Hyland Cloud Service production systems made by Hyland are properly authorized and reviewed prior to implementation. Customer is responsible for testing all configuration changes, authentication changes and upgrades implemented by Customer or implemented by Hyland at the request of Customer prior to production use of the Hyland Cloud Service. In cases where the Customer relies upon Hyland to implement changes on its behalf, a written request describing the change must be submitted (e.g. an e-mail, or another method provided by Hyland) by Customer’s designated Customer Security Administrators (“CSAs”) or set forth in a Services Proposal. Hyland will make scheduled configuration changes that are expected to impact Customer access to their Hyland Cloud Service during a planned maintenance window. Hyland may make configuration changes that are not expected to impact Customer during normal business hours.
- Monitoring usage and capacity levels within the Hyland Cloud Platform to adequately and proactively plan for future growth.
- Utilizing virus and malware protection technologies, which are configured to meet common industry standards designed to protect the Customer Data and equipment located within the Hyland Cloud Platform from virus infections or similar malicious payloads.
- Implementing disaster recovery and business continuity procedures. These will include replication of Customer Data to a secondary location.
- Maintaining a system and security logging process to capture system logs deemed critical by Hyland. These logs shall be maintained for at least six months and reviewed on a periodic basis.
- Maintaining system hardening requirements and configuration standards for components deployed within the Hyland Cloud Platform. Ensuring servers, operating systems, and supporting software used in the Hyland Cloud Platform receive all Critical and High security patches within a timely manner, but in no event more than 90 days after release, subject to the next sentence. In the event any such security patch would materially adversely affect the Hyland Cloud Service, then Hyland will use reasonable efforts to implement compensating controls until a security patch is available that would not materially adversely affect the Hyland Cloud Service.
- Conducting Hyland Cloud Platform vulnerability scans or analysis on at least a quarterly basis and remediate all critical and high vulnerabilities identified in accordance with its patch management procedures.
- Conducting Hyland Cloud Platform penetration tests at least annually.
- Communications Security
- Implementing Hyland Cloud Platform security controls to protect information resources within the Hyland Cloud Platform.
- When supported, upon implementation and once annually thereafter, Customer may request Hyland limit access to Customer’s Hyland Cloud Service to a list of pre-defined IP addresses at no additional cost.
- Supplier Relationships. Maintaining a Vendor Management Program for its critical vendors. This program will ensure critical vendors are evaluated on an annual basis.
- Security Incident.
- Employing incident response standards that are based upon applicable industry standards, such as ISO 27001:2013 and National Institute for Standards and Technology (“NIST”), to maintain the information security components of the Hyland Cloud Service environment.
- Responses to these incidents follow the Hyland documented incident response sequence. This sequence includes the incident trigger phase, evaluation phase, escalation phase, response phase, recovery phase, de-escalation phase, and post-incident review phase.
- If Hyland has determined Customer’s Hyland Cloud Service has been negatively impacted by a security incident, Hyland will deliver a root cause analysis summary. Such notice will not be unreasonably delayed, but will occur after initial corrective actions have been taken to contain the security threat or stabilize the Hyland Cloud Service.
- The root cause analysis will include the duration of the event, resolution, technical summary, outstanding issues, and follow-up, including steps Customer needs to take in order to prevent further issues. Hyland Cloud Service information including data elements that require additional confidentiality and security measures (including that of other customers impacted in the event) will not be publicly disclosed. If Customer needs additional details of an incident, a request to the Hyland GCS Support team must be submitted and handled on a case by case basis. The release of information process may require an on-site review to protect the confidentiality and security of the requested information.
- Hyland will notify Customer of a Security Incident within 48 hours. A “Security Incident” means a determination by Hyland of an actual disclosure of unencrypted Customer Data to an unauthorized person or entity that compromises the security, confidentiality, or integrity of the Customer Data.
- Information Security Aspects of Business Continuity Management.
- Maintaining a business continuity and disaster recovery plan.
- Reviewing and testing this plan annually.
- Aggregated Data.
- Hyland owns all Customer and User registration and billing data collected and used by Hyland that is required for user set-up, use and billing for the Hyland Cloud Service (“Account Information”) and all aggregated, anonymized and statistical data derived from the use and operation of the Hyland Cloud Service, including without limitation, the number of records in the Hyland Cloud Service, the number and types of transactions, configurations, and reports processed as part of the Hyland Cloud Service and the performance results of the Hyland Cloud Service (the “Aggregated Data”).
- Hyland may utilize the Account Information and Aggregated Data for purposes of operating Hyland’s business. For clarity, Account Information and Aggregated Data does not include Customer Data.
- Audit and Security Testing.
- Monitoring its compliance with its information security program. This includes periodic internal reviews. Results are shared with Hyland leadership and deviations tracked through to remediation.
- Maintaining a periodic external audit program. Completed attestations, such as available SOC 2 reports, are provided to Customer upon written request.
- Customer may conduct audits of Hyland’s operations that participate in the ongoing delivery and support of the Hyland Cloud Service purchased by Customer on an annual basis; provided Customer provides Hyland written notice of its desire to conduct such audit and the following criteria are met: (a) Hyland and Customer mutually agree upon the timing, scope, and criteria of such audit, which may include the completion of questionnaires supplied by Customer and guided review of policies, practices, procedures, Hyland Cloud Service configurations, invoices, or application logs, and (b) Customer agrees to pay Hyland fees (at Hyland’s standard rates) for the Professional Services that are required or requested of Hyland in connection with such audit. Prior to any such audit, any third party engaged by Customer to assist with such audit, must be cleared by Hyland and enter into a Non-Disclosure Agreement directly with Hyland. If any documentation requested by Customer cannot be removed from Hyland’s facilities as a result of physical limitations or policy restrictions, Hyland will allow Customer’s auditors access to such documentation at Hyland’s corporate headquarters in Ohio and may prohibit any type of copying or the taking of screen shots. Where necessary, Hyland will provide private and reasonable accommodation at Hyland’s corporate headquarters in Ohio for data analysis and meetings. Upon reasonable notice, Hyland and Customer mutually agree to make necessary employees or contractors available for interviews in person or on the phone during such audit at Customer’s cost and expense. Customer is prohibited from distributing or publishing the results of such audit to any third party without Hyland’s prior written approval.
- Customer may conduct penetration testing against the public URL used to access the Hyland Cloud Service on an annual basis; provided Customer provides Hyland with written notice of its desire to conduct such testing and the following criteria are met: (a) Hyland and Customer mutually agree upon the timing, scope, and criteria of such testing, which may include common social engineering, application, and network testing techniques used to identify or exploit common vulnerabilities including buffer overflows, cross site scripting, SQL injection, and man in the middle attacks, and (b) such testing is at Customer’s cost and expense and Customer pays to Hyland fees (at Hyland’s standard rates) for the Professional Services that are required or requested of Hyland in connection with such testing. Prior to any such testing, any third party engaged by Customer to assist with such testing, must be cleared by Hyland and enter into a Non-Disclosure Agreement directly with Hyland. Customer acknowledges and agrees that any such testing performed without mutual agreement regarding timing, scope, and criteria may be considered a hostile attack, which may trigger automated and manual responses, including reporting the activity to local and federal law enforcement agencies as well as immediate suspension of Customer’s access to or use of the Hyland Cloud Service. Customer is prohibited from distributing or publishing the results of such penetration testing to any third party without Hyland’s prior written approval.
Effective March 30th 2021 to February 2nd 2022
DownloadTable of Contents
- Risk Management.
- Conducting an annual risk assessment designed to identify threats and vulnerabilities in the administrative, physical, legal, regulatory, and technical safeguards used to protect the Hyland Cloud Service.
- Maintaining a documented risk remediation process to assign ownership of identified risks, establish remediation plans and timeframes, and provide for periodic monitoring of progress.
- Information Security Program.
- Maintaining a documented comprehensive Hyland Cloud Service information security program. This program will include policies and procedures based on industry standard practices, which may include ISO 27001/27002, or other equivalent standards.
- Such information security program shall include, as applicable: (i) adequate physical and cyber security where Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to Hyland personnel employment.
- These policies will be reviewed and updated by Hyland management annually.
- Organization of Information Security. Assigning security responsibilities to appropriate Hyland individuals or groups to facilitate protection of the Hyland Cloud Service and associated assets.
- Human Resources Security.
- Hyland employees undergo comprehensive screening during the hiring process. Background checks and reference validation will be performed to determine whether candidate qualifications are appropriate for the proposed position. Subject to any restrictions imposed by applicable law and based on jurisdiction, these background checks include criminal background checks, employment validation, and education verification as applicable.
- Ensuring all Hyland employees are subject to confidentiality and non-disclosure commitments before access is provisioned to the Hyland Cloud Service or Customer Data.
- Ensuring applicable Hyland employees receive security awareness training designed to provide such employees with information security knowledge to provide for the security, availability, and confidentiality of Customer Data.
- Upon Hyland employee separation or change in roles, Hyland shall ensure any Hyland employee access to the Hyland Cloud Service is revoked in a timely manner and all applicable Hyland assets, both information and physical, are returned.
- Asset Management.
- Maintaining asset and information management policies and procedures. This includes ownership of assets, an inventory of assets, classification guidelines, and handling standards pertaining to Hyland assets.
- Maintaining media handling procedures to ensure media containing Customer Data as part of the Hyland Cloud Service is encrypted and stored in a secure location subject to strict physical access controls.
- When a Hyland Cloud Service storage device has reached the end of its useful life, procedures include a decommissioning process that is designed to prevent Customer Data from being exposed to unauthorized individuals using the techniques recommended by NIST to destroy data as part of the decommissioning process.
- If a Hyland storage device is unable to be decommissioned using these procedures, the device will be virtually shredded, degaussed, purged/wiped, or physically destroyed in accordance with industry-standard practices.
- Access Controls.
- Maintaining a logical access policy and corresponding procedures. The logical access procedures will define the request, approval and access provisioning process for Hyland personnel. The logical access process will restrict Hyland user (local and remote) access based on Hyland user job function (role/profile based, appropriate access) for applications and databases. Hyland user access recertification to determine access and privileges will be performed periodically. Procedures for onboarding and offboarding Hyland personnel users in a timely manner will be documented. Procedures for Hyland personnel user inactivity threshold leading to account suspension and removal threshold will be documented.
- Limiting Hyland’s access to Customer Data to its personnel who have a need to access Customer Data as a condition to Hyland’s performance of the services under this Agreement. Hyland shall utilize the principle of “least privilege” and the concept of “minimum necessary” when determining the level of access for all Hyland users to Customer Data. Hyland shall require strong passwords subject to complexity requirements and periodic rotation and the use of multi-factor authentication.
- Ensuring strict access controls are in place for Customer Data access by Hyland. Customer administrators control its user access, user permissions, and Customer Data retention to the extent such controls are available to Customer with respect to the Hyland Cloud Service.
- System Boundaries.
- Hyland is not responsible for any system components that are not within the Hyland Cloud Platform, including network devices, network connectivity, workstations, servers, and software owned and operated by the Customer or other third parties. Hyland may provide support for these components at its reasonable discretion.
- The processes executed within the Hyland Cloud Platform are limited to those that are executed by a Hyland employee (or Hyland authorized third party) or processes that are executed within Hyland’s established system boundaries, in whole. This includes, but is not limited to, hardware installation, software installation, data replication, data security, and authentication processes.
- Certain business processes may cross these boundaries, meaning one or more tasks are executed outside of Hyland’s established system boundaries for the Hyland Cloud Platform, one or more tasks are executed by individuals who are not Hyland personnel (or authorized third-parties), or one or more tasks are executed based on written requests placed by Customer. In such event, Hyland will provide support for such processes to the extent they occur within Hyland’s established system boundaries, but Hyland is not responsible for providing support for such processes to the extent they occur outside of such established system boundaries. At its reasonable discretion, Hyland may provide limited support for processes that occur outside such established system boundaries for the Hyland Cloud Platform. Examples of business processes that cross these boundaries include, but are not limited to, Hyland Cloud Service configuration changes, processing that occurs within the Hyland Cloud Service, user authorization, and file transfers.
- Encryption.
- Customer Data shall only be uploaded to the Hyland Cloud Services in an encrypted format such as via SFTP, TLS/SSL, or other equivalent method.
- If Customer purchases the applicable encryption service, applicable Customer Data shall be encrypted at rest.
- Where use of encryption functionality may be controlled or modified by Customer, in the event Customer elects to modify the use of or turn off any encryption functionality, Customer does so at its own risk.
- Physical and Environment Security.
- The Hyland Cloud Platform uses data centers or third party service providers who have demonstrated compliance with one or more of the following standards (or a reasonable equivalent): International Organization for Standardization (“ISO”) 27001 and/or American Institute of Certified Public Accountants (“AICPA”) Service Organization Controls (“SOC”) Reports for Services Organizations. These providers provide Internet connectivity, physical security, power, and environmental systems and other services for the Hyland Cloud Platform.
- Hyland uses architecture and technologies designed to promote both security and high availability.
- Operations Security.
- Maintaining documented Hyland cloud operating procedures.
- Maintaining change management controls to ensure changes to Hyland Cloud Service production systems made by Hyland are properly authorized and reviewed prior to implementation. Customer is responsible for testing all configuration changes, authentication changes and upgrades implemented by Customer or implemented by Hyland at the request of Customer prior to production use of the Hyland Cloud Service. In cases where the Customer relies upon Hyland to implement changes on its behalf, a written request describing the change must be submitted (e.g. an e-mail, or another method provided by Hyland) by Customer’s designated Customer Security Administrators (“CSAs”) or set forth in a Services Proposal. Hyland will make scheduled configuration changes that are expected to impact Customer access to their Hyland Cloud Service during a planned maintenance window. Hyland may make configuration changes that are not expected to impact Customer during normal business hours.
- Monitoring usage and capacity levels within the Hyland Cloud Platform to adequately and proactively plan for future growth.
- Utilizing virus and malware protection technologies, which are configured to meet common industry standards designed to protect the Customer Data and equipment located within the Hyland Cloud Platform from virus infections or similar malicious payloads.
- Implementing disaster recovery and business continuity procedures. These will include replication of Customer Data to a secondary location.
- Maintaining a system and security logging process to capture system logs deemed critical by Hyland. These logs shall be maintained for at least six months and reviewed on a periodic basis.
- Maintaining system hardening requirements and configuration standards for components deployed within the Hyland Cloud Platform. Ensuring servers, operating systems, and supporting software used in the Hyland Cloud Platform receive all Critical and High security patches within a timely manner, but in no event more than 90 days after release, subject to the next sentence. In the event any such security patch would materially adversely affect the Hyland Cloud Service, then Hyland will use reasonable efforts to implement compensating controls until a security patch is available that would not materially adversely affect the Hyland Cloud Service.
- Conducting Hyland Cloud Platform vulnerability scans or analysis on at least a quarterly basis and remediate all critical and high vulnerabilities identified in accordance with its patch management procedures.
- Conducting Hyland Cloud Platform penetration tests at least annually.
- Communications Security
- Implementing Hyland Cloud Platform security controls to protect information resources within the Hyland Cloud Platform.
- When supported, upon implementation and once annually thereafter, Customer may request Hyland limit access to Customer’s Hyland Cloud Service to a list of pre-defined IP addresses at no additional cost.
- Supplier Relationships. Maintaining a Vendor Management Program for its critical vendors. This program will ensure critical vendors are evaluated on an annual basis.
- Security Incident.
- Employing incident response standards that are based upon applicable industry standards, such as ISO 27001:2013 and National Institute for Standards and Technology (“NIST”), to maintain the information security components of the Hyland Cloud Service environment.
- Responses to these incidents follow the Hyland documented incident response sequence. This sequence includes the incident trigger phase, evaluation phase, escalation phase, response phase, recovery phase, de-escalation phase, and post-incident review phase.
- If Hyland has determined Customer’s Hyland Cloud Service has been negatively impacted by a security incident, Hyland will deliver a root cause analysis summary. Such notice will not be unreasonably delayed, but will occur after initial corrective actions have been taken to contain the security threat or stabilize the Hyland Cloud Service.
- The root cause analysis will include the duration of the event, resolution, technical summary, outstanding issues, and follow-up, including steps Customer needs to take in order to prevent further issues. Hyland Cloud Service information including data elements that require additional confidentiality and security measures (including that of other customers impacted in the event) will not be publicly disclosed. If Customer needs additional details of an incident, a request to the Hyland GCS Support team must be submitted and handled on a case by case basis. The release of information process may require an on-site review to protect the confidentiality and security of the requested information.
- Hyland will notify Customer of a Security Incident within 48 hours. A “Security Incident” means a determination by Hyland of an actual disclosure of unencrypted Customer Data to an unauthorized person or entity that compromises the security, confidentiality, or integrity of the Customer Data.
- Information Security Aspects of Business Continuity Management.
- Maintaining a business continuity and disaster recovery plan.
- Reviewing and testing this plan annually.
- Aggregated Data.
- Hyland owns all Customer and User registration and billing data collected and used by Hyland that is required for user set-up, use and billing for the Hyland Cloud Service (“Account Information”) and all aggregated, anonymized and statistical data derived from the use and operation of the Hyland Cloud Service, including without limitation, the number of records in the Hyland Cloud Service, the number and types of transactions, configurations, and reports processed as part of the Hyland Cloud Service and the performance results of the Hyland Cloud Service (the “Aggregated Data”).
- Hyland may utilize the Account Information and Aggregated Data for purposes of operating Hyland’s business. For clarity, Account Information and Aggregated Data does not include Customer Data.
- Audit and Security Testing.
- Monitoring its compliance with its information security program. This includes periodic internal reviews. Results are shared with Hyland leadership and deviations tracked through to remediation.
- Maintaining a periodic external audit program. Completed attestations, such as available SOC 2 reports, are provided to Customer upon written request.
- Customer may conduct audits of Hyland’s operations that participate in the ongoing delivery and support of the Hyland Cloud Service purchased by Customer on an annual basis; provided Customer provides Hyland written notice of its desire to conduct such audit and the following criteria are met: (a) Hyland and Customer mutually agree upon the timing, scope, and criteria of such audit, which may include the completion of questionnaires supplied by Customer and guided review of policies, practices, procedures, Hyland Cloud Service configurations, invoices, or application logs, and (b) Customer agrees to pay Hyland fees (at Hyland’s standard rates) for the Professional Services that are required or requested of Hyland in connection with such audit. Prior to any such audit, any third party engaged by Customer to assist with such audit, must be cleared by Hyland and enter into a Non-Disclosure Agreement directly with Hyland. If any documentation requested by Customer cannot be removed from Hyland’s facilities as a result of physical limitations or policy restrictions, Hyland will allow Customer’s auditors access to such documentation at Hyland’s corporate headquarters in Ohio and may prohibit any type of copying or the taking of screen shots. Where necessary, Hyland will provide private and reasonable accommodation at Hyland’s corporate headquarters in Ohio for data analysis and meetings. Upon reasonable notice, Hyland and Customer mutually agree to make necessary employees or contractors available for interviews in person or on the phone during such audit at Customer’s cost and expense. Customer is prohibited from distributing or publishing the results of such audit to any third party without Hyland’s prior written approval.
- Customer may conduct penetration testing against the public URL used to access the Hyland Cloud Service on an annual basis; provided Customer provides Hyland with written notice of its desire to conduct such testing and the following criteria are met: (a) Hyland and Customer mutually agree upon the timing, scope, and criteria of such testing, which may include common social engineering, application, and network testing techniques used to identify or exploit common vulnerabilities including buffer overflows, cross site scripting, SQL injection, and man in the middle attacks, and (b) such testing is at Customer’s cost and expense and Customer pays to Hyland fees (at Hyland’s standard rates) for the Professional Services that are required or requested of Hyland in connection with such testing. Prior to any such testing, any third party engaged by Customer to assist with such testing, must be cleared by Hyland and enter into a Non-Disclosure Agreement directly with Hyland. Customer acknowledges and agrees that any such testing performed without mutual agreement regarding timing, scope, and criteria may be considered a hostile attack, which may trigger automated and manual responses, including reporting the activity to local and federal law enforcement agencies as well as immediate suspension of Customer’s access to or use of the Hyland Cloud Service. Customer is prohibited from distributing or publishing the results of such penetration testing to any third party without Hyland’s prior written approval.
Professional Services Schedule
Effective March 7th 2024
DownloadTable of Contents
PROFESSIONAL SERVICES SCHEDULE
This Professional Services Schedule (this “Professional Services Schedule”) is part of the Master Agreement, Order Form, or other agreement or document entered into between Customer and Hyland, which incorporates this Professional Services Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Professional Services Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Professional Services Schedule shall have the meaning ascribed them in this Professional Services Schedule or, if not defined in this Professional Services Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Professional Services Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Professional Services” means any professional services provided by Hyland under a Services Proposal (as defined in this Professional Services Schedule), including but not limited to those services listed at https://www.hyland.com/services. Examples of the services include: (a) installation of the Software; (b) consulting, implementation and integration projects related to the Software, including but not limited to the customized configuration of integration Software or business process automation modules; (c) project management; (d) development projects in connection with the integration of Software with other applications utilizing any Software application programming interface (API).
“Services Proposal” means either: (a) a written proposal issued hereunder, and which sets forth the Professional Services Hyland will provide to Customer and which is signed by Customer and Hyland; or (b) an order form submitted by Customer and accepted by Hyland for Professional Services. Services Proposals are fully incorporated herein by reference.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under a Services Proposal. If there is an underlying license agreement between the parties, then specifications shall be considered Documentation in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under the Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland as part of the configuration of advance capture Software.
1. SERVICES PROPOSAL. Customer may request Professional Services from Hyland. Hyland and Customer will discuss the parameters of the request and Hyland will inform the Customer as to whether the Professional Services shall be performed pursuant to a Services Proposal.
2. FULFILLMENT.
(a) Hyland will provide the Professional Services described in any mutually agreed upon Services Proposal at a time and on a schedule that is mutually agreed upon by the parties. If any delays in such Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with any Services Proposal, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in any Services Proposal is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure as described in the Agreement, Hyland agrees, at no additional charge, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of such Professional Services. The parties agree that any Professional Services or Work Products described in this Professional Services Schedule that have been performed or developed, in whole or in part, prior to the execution of this Agreement by the parties nevertheless shall be covered by all terms and conditions of this Professional Services Schedule.
(b) Corporate Policies. Hyland acknowledges that Customer maintains corporate policies which apply to individuals who will perform services utilizing Customer’s premises or system (collectively, the “Corporate Policies”). In performing Professional Services under the Agreement, or any Services Proposal entered into pursuant to the terms of the Agreement, Hyland will use reasonable efforts to comply with the Corporate Policies to the extent such Corporate Policies are applicable to the delivery of such Professional Services, do not conflict with the Agreement or any other related agreement in place between Hyland and Customer and have been provided to Hyland reasonably in advance of any Professional Services engagement. Notwithstanding anything to the contrary in such Corporate Policies, if a Hyland resource fails to comply with the Corporate Policies and such failure does not otherwise constitute a breach of this Agreement, then Customer acknowledges and agrees that Hyland will not be in breach of contract or otherwise liable for damages, and as Customer’s sole remedy, Customer may immediately remove from its premises the individual resource(s) responsible for the failure and require that such individual resource(s) do not perform any further Professional Services for Customer.
3. CHANGES TO SERVICES PROPOSAL. Either party may, at any time, reasonably request a change to any Service Proposal. Any requested change that the parties mutually accept (a “Change”) will be set forth in a written change order prepared by Hyland and agreed to and signed by both parties that specifically references the relevant Service Proposal. In the event the parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the relevant Services Proposal, either party may terminate such Service Proposal upon not less than thirty (30) days advance written notice to the other party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of Professional Services under any Services Proposal; will provide the resources specified in the relevant Services Proposal; and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of the relevant Services Proposal. Customer acknowledges that if it fails to provide assistance and perform or fulfill its obligations in accordance with this Section and the relevant Services Proposal, Hyland’s ability to provide such Professional Services, meet the performance schedule set forth in such Services Proposal and keep services fees reasonably in line with any estimates given in the Services Proposal may be adversely affected. During any period in which Hyland is performing services hereunder, Customer shall provide to the Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable software system. Remote and local access will be granted for all provisioned environments, including production.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HYLAND CLOUD SERVICE HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in any applicable Services Proposal: (a) Hyland will charge services fees for Professional Services at Hyland’s then-current standard list price for the applicable Professional Services; and (b) Hyland shall invoice for Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees; and each such invoice shall be paid in full in accordance with the terms of the Agreement. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Hyland shall be reimbursed for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of services under the Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in any applicable Services Proposal, Hyland shall invoice for all reimbursable costs and expenses on a monthly basis, in arrears; and such invoices shall be paid in full each in accordance with the Agreement.
7. LIMITED WARRANTY FOR SERVICES.
7.1 Limited Warranty. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under the Agreement.
7.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under the immediately preceding Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies). If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time, Customer’s sole and exclusive remedy shall be to terminate the Services Proposal under which the non-conforming Services have been performed, in which event Hyland will refund to Customer any portion of the services fees under such Services Proposal relating directly to such non-conforming Professional Services paid prior to the time of such termination.
8. WORK PRODUCTS.
8.1 Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
8.2 Modification of Work Products.
8.2.1 Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
8.2.2 Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted hereunder.
8.2.3 Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted hereunder.
8.3 Work Products Warranty
8.3.1 Limited Warranty. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
8.3.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under the immediately preceding Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Professional Services Schedule with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product.
8.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
8.4.1 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 8.4(d), Hyland shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer for the creation and implementation of the infringing Work Products.
8.4.2 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in this Section that arise from: (a) any Customer Data; (b) use of the Work Products by Customer other than as expressly permitted by this Professional Services Schedule; (c) the combination of the Work Products with any product not furnished by Hyland to Customer; (d) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (e) the Customer’s business methods or processes.
8.4.3 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
9. TERMINATION.
9.1 Generally. In addition to the termination provisions set forth in the General Terms Schedule, Customer or Hyland may terminate this Professional Services Schedule, including any Services Proposal, for any reason, upon not less than thirty (30) days advance written notice to the other party to such effect. In the event this Professional Services Schedule is terminated in its entirety, any Services Proposal not terminated shall survive in accordance with its terms and the terms of this Professional Services Schedule.
9.2 Terminating a Services Proposal. In the case of termination of any Services Proposal, except in the case of termination due to Hyland's breach, all Professional Services fees related to all Professional Services performed by Hyland prior to and including the date of termination, as well as any additional reimbursable costs or expenses for which Hyland has incurred or contracted in connection with such Services Proposal and is unable to avoid, shall be due and payable in full. Additionally, all property of each party in possession of the other party in connection with Professional Services performed under this Schedule shall be returned.
9.3 Effects of Termination. Upon any termination of this Schedule in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Schedule shall survive according to its terms.
10 ADDITIONAL TERMS AND CONDITIONS. If Hyland is Hyland Software Germany GmbH, the additional or alternative terms and conditions set forth on Exhibit A shall apply.
11. CONTROLLING LANGAUGE. Hyland may make other versions of this Professional Services Schedule available in other languages at this online location. This English language version of this Professional Services Schedule controls over any version of the Professional Services Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Professional Services Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Professional Services Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit A shall apply:
1. The following provision shall be added to the Limited Warranty Section of the Professional Services Schedule:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by the Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
2. The Work Products License Section of the Professional Services Schedule shall be replaced in its entirety as follows:
Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompuling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
3. The Work Products Warranty Section of the Professional Services Schedule shall be replaced in its entirety as follows:
For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Schedule with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of the Agreement.
4. The Work Products Infringement Indemnification Section of the Professional Services Schedule shall be replaced in its entirety as follows:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective October 4th 2023 to March 7th 2024
DownloadTable of Contents
PROFESSIONAL SERVICES SCHEDULE
This Professional Services Schedule (this “Professional Services Schedule”) is part of the Master Agreement, Order Form, or other agreement or document entered into between Customer and Hyland, which incorporates this Professional Services Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Professional Services Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Professional Services Schedule shall have the meaning ascribed them in this Professional Services Schedule or, if not defined in this Professional Services Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Professional Services Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Professional Services” means any professional services provided by Hyland under a Services Proposal (as defined in this Professional Services Schedule), including but not limited to those services listed at https://www.hyland.com/services. Examples of the services include: (a) installation of the Software; (b) consulting, implementation and integration projects related to the Software, including but not limited to the customized configuration of integration Software or business process automation modules; (c) project management; (d) development projects in connection with the integration of Software with other applications utilizing any Software application programming interface (API).
“Services Proposal” means either: (a) a written proposal issued hereunder, and which sets forth the Professional Services Hyland will provide to Customer and which is signed by Customer and Hyland; or (b) an order form submitted by Customer and accepted by Hyland for Professional Services. Services Proposals are fully incorporated herein by reference.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under a Services Proposal. If there is an underlying license agreement between the parties, then specifications shall be considered Documentation in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under the Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland as part of the configuration of advance capture Software.
1. SERVICES PROPOSAL. Customer may request Professional Services from Hyland. Hyland and Customer will discuss the parameters of the request and Hyland will inform the Customer as to whether the Professional Services shall be performed pursuant to a Services Proposal.
2. FULFILLMENT.
(a) Hyland will provide the Professional Services described in any mutually agreed upon Services Proposal at a time and on a schedule that is mutually agreed upon by the parties. If any delays in such Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with any Services Proposal, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in any Services Proposal is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure as described in the Agreement, Hyland agrees, at no additional charge, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of such Professional Services. The parties agree that any Professional Services or Work Products described in this Professional Services Schedule that have been performed or developed, in whole or in part, prior to the execution of this Agreement by the parties nevertheless shall be covered by all terms and conditions of this Professional Services Schedule.
(b) Corporate Policies. Hyland acknowledges that Customer maintains corporate policies which apply to individuals who will perform services utilizing Customer’s premises or system (collectively, the “Corporate Policies”). In performing Professional Services under the Agreement, or any Services Proposal entered into pursuant to the terms of the Agreement, Hyland will use reasonable efforts to comply with the Corporate Policies to the extent such Corporate Policies are applicable to the delivery of such Professional Services, do not conflict with the Agreement or any other related agreement in place between Hyland and Customer and have been provided to Hyland reasonably in advance of any Professional Services engagement. Notwithstanding anything to the contrary in such Corporate Policies, if a Hyland resource fails to comply with the Corporate Policies and such failure does not otherwise constitute a breach of this Agreement, then Customer acknowledges and agrees that Hyland will not be in breach of contract or otherwise liable for damages, and as Customer’s sole remedy, Customer may immediately remove from its premises the individual resource(s) responsible for the failure and require that such individual resource(s) do not perform any further Professional Services for Customer.
3. CHANGES TO SERVICES PROPOSAL. Either party may, at any time, reasonably request a change to any Service Proposal. Any requested change that the parties mutually accept (a “Change”) will be set forth in a written change order prepared by Hyland and agreed to and signed by both parties that specifically references the relevant Service Proposal. In the event the parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the relevant Services Proposal, either party may terminate such Service Proposal upon not less than thirty (30) days advance written notice to the other party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of Professional Services under any Services Proposal; will provide the resources specified in the relevant Services Proposal; and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of the relevant Services Proposal. Customer acknowledges that if it fails to provide assistance and perform or fulfill its obligations in accordance with this Section and the relevant Services Proposal, Hyland’s ability to provide such Professional Services, meet the performance schedule set forth in such Services Proposal and keep services fees reasonably in line with any estimates given in the Services Proposal may be adversely affected. During any period in which Hyland is performing services hereunder, Customer shall provide to the Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable software system. Remote and local access will be granted for all provisioned environments, including production.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HYLAND CLOUD SERVICE HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in any applicable Services Proposal: (a) Hyland will charge services fees for Professional Services at Hyland’s then-current standard list price for the applicable Professional Services; and (b) Hyland shall invoice for Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees; and each such invoice shall be paid in full in accordance with the terms of the Agreement. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Hyland shall be reimbursed for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of services under the Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in any applicable Services Proposal, Hyland shall invoice for all reimbursable costs and expenses on a monthly basis, in arrears; and such invoices shall be paid in full each in accordance with the Agreement.
7. LIMITED WARRANTY FOR SERVICES.
7.1 Limited Warranty. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under the Agreement.
7.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under the immediately preceding Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies). If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time, Customer’s sole and exclusive remedy shall be to terminate the Services Proposal under which the non-conforming Services have been performed, in which event Hyland will refund to Customer any portion of the services fees under such Services Proposal relating directly to such non-conforming Professional Services paid prior to the time of such termination.
8. WORK PRODUCTS.
8.1 Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
8.2 Modification of Work Products.
8.2.1 Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
8.2.2 Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted hereunder.
8.2.3 Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted hereunder.
8.3 Work Products Warranty
8.3.1 Limited Warranty. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
8.3.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under the immediately preceding Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Professional Services Schedule with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product.
8.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
8.4.1 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 8.4(d), Hyland shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer for the creation and implementation of the infringing Work Products.
8.4.2 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in this Section that arise from: (a) any Customer Data; (b) use of the Work Products by Customer other than as expressly permitted by this Professional Services Schedule; (c) the combination of the Work Products with any product not furnished by Hyland to Customer; (d) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (e) the Customer’s business methods or processes.
8.4.3 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
9. TERMINATION.
9.1 Generally. In addition to the termination provisions set forth in the General Terms Schedule, Customer or Hyland may terminate this Professional Services Schedule, including any Services Proposal, for any reason, upon not less than thirty (30) days advance written notice to Hyland to such effect. In the event this Professional Services Schedule is terminated in its entirety, any Services Proposal not terminated shall survive in accordance with its terms and the terms of this Professional Services Schedule.
9.2 Terminating a Services Proposal. In the case of termination of any Services Proposal, except in the case of termination due to Hyland's breach, all Professional Services fees related to all Professional Services performed by Hyland prior to and including the date of termination, as well as any additional reimbursable costs or expenses for which Hyland has incurred or contracted in connection with such Services Proposal and is unable to avoid, shall be due and payable in full. Additionally, all property of each party in possession of the other party in connection with Professional Services performed under this Schedule shall be returned.
9.3 Effects of Termination. Upon any termination of this Schedule in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Schedule shall survive according to its terms.
10 ADDITIONAL TERMS AND CONDITIONS. If Hyland is Hyland Software Germany GmbH, the additional or alternative terms and conditions set forth on Exhibit A shall apply.
11. CONTROLLING LANGAUGE. Hyland may make other versions of this Professional Services Schedule available in other languages at this online location. This English language version of this Professional Services Schedule controls over any version of the Professional Services Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Professional Services Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Professional Services Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit A shall apply:
1. The following provision shall be added to the Limited Warranty Section of the Professional Services Schedule:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by the Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
2. The Work Products License Section of the Professional Services Schedule shall be replaced in its entirety as follows:
Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompuling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
3. The Work Products Warranty Section of the Professional Services Schedule shall be replaced in its entirety as follows:
For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Schedule with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of the Agreement.
4. The Work Products Infringement Indemnification Section of the Professional Services Schedule shall be replaced in its entirety as follows:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 2nd 2023 to October 4th 2023
DownloadTable of Contents
PROFESSIONAL SERVICES SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Professional Services Schedule (this “Professional Services Schedule”) is made part of the Hyland Master Agreement, Order Form, or any other agreement or document entered into between Customer and Hyland, which incorporates this Professional Services Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Professional Services Schedule.
DEFINED TERMS
All capitalized terms used in this Professional Services Schedule shall have the meaning ascribed them in this Professional Services Schedule or, if not defined in this Professional Services Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Professional Services Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Professional Services” means any professional services provided by Hyland under a Services Proposal (as defined in this Professional Services Schedule), including but not limited to those services listed at https://www.hyland.com/services. Examples of the services include: (a) installation of the Software; (b) consulting, implementation and integration projects related to the Software, including but not limited to the customized configuration of integration Software or business process automation modules; (c) project management; (d) development projects in connection with the integration of Software with other applications utilizing any Software application programming interface (API).
“Services Proposal” means either: (a) a written proposal issued hereunder, and which sets forth the Professional Services Hyland will provide to Customer and which is signed by Customer and Hyland; or (b) an order form submitted by Customer and accepted by Hyland for Professional Services. Services Proposals are fully incorporated herein by reference.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under a Services Proposal. If there is an underlying license agreement between the parties, then specifications shall be considered Documentation in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland as part of the configuration of advance capture Software.
1. SERVICES PROPOSAL. Customer may request Professional Services from Hyland. Hyland and Customer will discuss the parameters of the request and Hyland will inform the Customer as to whether the Professional Services shall be performed pursuant to a Services Proposal.
2. FULFILLMENT.
(a) Hyland will provide the Professional Services described in any mutually agreed upon Services Proposal at a time and on a schedule that is mutually agreed upon by the parties. If any delays in such Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with any Services Proposal, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in any Services Proposal is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure as described in the Agreement, Hyland agrees, at no additional charge, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of such Professional Services. The parties agree that any Professional Services or Work Products described in this Professional Services Schedule that have been performed or developed, in whole or in part, prior to the execution of this Agreement by the parties nevertheless shall be covered by all terms and conditions of this Professional Services Schedule.
(b) Corporate Policies. Hyland acknowledges that Customer maintains corporate policies which apply to individuals who will perform services utilizing Customer’s premises or system (collectively, the “Corporate Policies”). In performing Professional Services under this Agreement, or any Services Proposal entered into pursuant to the terms of this Agreement, Hyland will use reasonable efforts to comply with the Corporate Policies to the extent such Corporate Policies are applicable to the delivery of such Professional Services, do not conflict with the Agreement or any other related agreement in place between Hyland and Customer and have been provided to Hyland reasonably in advance of any Professional Services engagement. Notwithstanding anything to the contrary in such Corporate Policies, if a Hyland resource fails to comply with the Corporate Policies and such failure does not otherwise constitute a breach of this Agreement, then Customer acknowledges and agrees that Hyland will not be in breach of contract or otherwise liable for damages, and as Customer’s sole remedy, Customer may immediately remove from its premises the individual resource(s) responsible for the failure and require that such individual resource(s) do not perform any further Professional Services for Customer.
3. CHANGES TO SERVICES PROPOSAL. Either party may, at any time, reasonably request a change to any Service Proposal. Any requested change that the parties mutually accept (a “Change”) will be set forth in a written change order prepared by Hyland and agreed to and signed by both parties that specifically references the relevant Service Proposal. In the event the parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the relevant Services Proposal, either party may terminate such Service Proposal upon not less than thirty (30) days advance written notice to the other party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of Professional Services under any Services Proposal; will provide the resources specified in the relevant Services Proposal; and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of the relevant Services Proposal. Customer acknowledges that if it fails to provide assistance and perform or fulfill its obligations in accordance with this Section and the relevant Services Proposal, Hyland’s ability to provide such Professional Services, meet the performance schedule set forth in such Services Proposal and keep services fees reasonably in line with any estimates given in the Services Proposal may be adversely affected. During any period in which Hyland is performing services hereunder, Customer shall provide to the Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable software system. Remote and local access will be granted for all provisioned environments, including production.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HYLAND CLOUD SERVICE HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in any applicable Services Proposal: (a) Hyland will charge services fees for Professional Services at Hyland’s then-current standard list price for the applicable Professional Services; and (b) Hyland shall invoice for Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees; and each such invoice shall be paid in full in accordance with the terms of this Agreement. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Hyland shall be reimbursed for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in any applicable Services Proposal, Hyland shall invoice for all reimbursable costs and expenses on a monthly basis, in arrears; and such invoices shall be paid in full each in accordance with this Agreement.
7. LIMITED WARRANTY FOR SERVICES.
7.1 Limited Warranty. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
7.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under the immediately preceding Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies). If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time, Customer’s sole and exclusive remedy shall be to terminate the Services Proposal under which the non-conforming Services have been performed, in which event Hyland will refund to Customer any portion of the services fees under such Services Proposal relating directly to such non-conforming Professional Services paid prior to the time of such termination.
8. WORK PRODUCTS.
8.1 Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
8.2 Modification of Work Products.
8.2.1 Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
8.2.2 Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted hereunder.
8.2.3 Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted hereunder.
8.3 Work Products Warranty
8.3.1 Limited Warranty. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
8.3.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under the immediately preceding Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Professional Services Schedule with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product.
8.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
8.4.1 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 8.4(d), Hyland shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer for the creation and implementation of the infringing Work Products.
8.4.2 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in this Section that arise from: (a) any Customer Data; (b) use of the Work Products by Customer other than as expressly permitted by this Professional Services Schedule; (c) the combination of the Work Products with any product not furnished by Hyland to Customer; (d) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (e) the Customer’s business methods or processes.
8.4.3 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
9. TERMINATION.
9.1 Generally. In addition to the termination provisions set forth in the General Terms Schedule, Customer or Hyland may terminate this Professional Services Schedule, including any Services Proposal, for any reason, upon not less than thirty (30) days advance written notice to Hyland to such effect. In the event this Professional Services Schedule is terminated in its entirety, any Services Proposal not terminated shall survive in accordance with its terms and the terms of this Professional Services Schedule.
9.2 Terminating a Services Proposal. In the case of termination of any Services Proposal, except in the case of termination due to Hyland's breach, all Professional Services fees related to all Professional Services performed by Hyland prior to and including the date of termination, as well as any additional reimbursable costs or expenses for which Hyland has incurred or contracted in connection with such Services Proposal and is unable to avoid, shall be due and payable in full. Additionally, all property of each party in possession of the other party in connection with Professional Services performed under this Schedule shall be returned.
9.3 Effects of Termination. Upon any termination of this Schedule in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Schedule shall survive according to its terms.
10 ADDITIONAL TERMS AND CONDITIONS. If Hyland is Hyland Software Germany GmbH, the additional or alternative terms and conditions set forth on Exhibit A shall apply.
11. CONTROLLING LANGAUGE. Hyland may make other versions of this Professional Services Schedule available in other languages at this online location. This English language version of this Professional Services Schedule controls over any version of the Professional Services Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Professional Services Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Professional Services Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit A shall apply:
1. The following provision shall be added to the Limited Warranty Section of the Professional Services Schedule:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by this Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
2. The Work Products License Section of the Professional Services Schedule shall be replaced in its entirety as follows:
Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompuling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
3. The Work Products Warranty Section of the Professional Services Schedule shall be replaced in its entirety as follows:
For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Schedule with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of this Agreement.
4. The Work Products Infringement Indemnification Section of the Professional Services Schedule shall be replaced in its entirety as follows:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective December 8th 2022 to June 2nd 2023
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Effective March 30th 2021 to December 8th 2022
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Support Prioritization Attachment
Effective August 22nd 2023
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Effective May 30th 2023 to August 22nd 2023
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Effective May 30th 2023 to May 30th 2023
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Effective December 8th 2022 to May 30th 2023
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Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any Error that causes total or substantial Software failure, which means that the Software is down and Customer is unable to access the Software in any way within their production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support manager. Within thirty (30) minutes, the Manager will notify a member of senior management. If there is no Resolution within two (2) hours of the Customer’s notice, Hyland will place the Customer on the High Visibility Ticker (HVT). If there is no Resolution within four (4) hours of the Customer’s notice or by the end of business of that day, Hyland will designate the Error as Code Blue. Designation as Code Blue means a resolution team is immediately formed for the Level 1 Error and the resolution team provides continuous updates on all issues of change or status to all C-level executives and vice presidents of Hyland, and all of Hyland employees are made aware that the Customer is on Code Blue. To provide a Resolution, Hyland will match the Customer’s effort, up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 2 | “Level 2” means an Error that causes substantial Software failure which prevents a portion of Customer’s users from accessing the Software in any way within the production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support manager within sixty (60) minutes. Within two (2) hours, the manager will notify a member of senior management. If there is no Resolution by the end of business on that day, Hyland will place the Customer on Hyland’s High Visibility Ticker. If there is no Resolution within twenty-four (24) hours of Customer’s notice, Hyland will designate the Error as Code Blue. To provide a Resolution, Hyland will match Customer’s efforts up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 3 | “Level 3” means that the Software is usable except that an Error causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will match Customer’s efforts up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution. |
Level 4 | “Level 4” means that the Software is usable except that an Error prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Software is usable except that an Error causes a trivial inconvenience and the task can be completed in another way | Standard Maintenance and Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Maintenance and Support. |
Effective March 30th 2021 to December 8th 2022
DownloadTable of Contents
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any Error that causes total or substantial Software failure, which means that the Software is down and Customer is unable to access the Software in any way within their production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. If there is no Resolution within two (2) hours of the Customer’s notice, Hyland will place the Customer on the High Visibility Ticker (HVT). If there is no Resolution within four (4) hours of the Customer’s notice or by the end of business of that day, Hyland will designate the Error as Code Blue. Designation as Code Blue means a resolution team is immediately formed for the Level 1 Error and the resolution team provides continuous updates on all issues of change or status to all C-Level Executives and Vice Presidents of Hyland, and all of Hyland employees are made aware that the Customer is on Code Blue. To provide a Resolution, Hyland will match the Customer’s effort, up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 2 | “Level 2” means an Error that causes substantial Software failure which prevents a portion of Customer’s users from accessing the Software in any way within the production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. If there is no Resolution by the end of business on that day, Hyland will place the Customer on Hyland’s High Visibility Ticker. If there is no Resolution within twenty-four (24) hours of Customer’s notice, Hyland will designate the Error as Code Blue. To provide a Resolution, Hyland will match Customer’s efforts up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 3 | “Level 3” means that the Software is usable except that an Error causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will match Customer’s efforts up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution. |
Level 4 | “Level 4” means that the Software is usable except that an Error prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Software is usable except that an Error causes a trivial inconvenience and the task can be completed in another way | Standard Maintenance and Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Maintenance and Support. |
Acceptable Use Policy Attachment - AUP
Effective June 6th 2023
DownloadTable of Contents
Effective June 6th 2023
DownloadANLAGE - RICHTLINIE ZUR AKZEPTABLEN NUTZUNG
1. EINLEITUNG:
Diese Richtlinie zur akzeptablen Nutzung (diese „RAN“) gilt für alle natürlichen und juristischen Personen (im Folgenden zusammenfassend als „Benutzer“ bezeichnet), welche die von Hyland Software, Inc. oder seinen verbundenen Unternehmen („Hyland“) bereitgestellten Dienste und Softwareprodukte in Verbindung mit dem Hyland Cloud-Dienst nutzen. Diese RAN dient dem Schutz der Sicherheit, Integrität, Zuverlässigkeit und Privatsphäre des Hyland-Netzwerks und des Hyland Cloud-Dienstes, den Hyland für seine Hosting-Kunden hostet.
Mit der Nutzung des Hyland Cloud-Dienstes akzeptiert der Benutzer die Bedingungen dieser RAN in ihrer zum Zeitpunkt der Nutzung gültigen Fassung. Hyland behält sich das Recht vor, diese Richtlinie jederzeit mit sofortiger Wirkung zu ändern, sobald Hyland die geänderte oder überarbeitete RAN auf der Hyland-Website veröffentlicht hat: https://www.hyland.com/community.
2. BENUTZERPFLICHTEN.
2.1 Fehlgebrauch. Der Benutzer ist für jede missbräuchliche Nutzung eines Hyland Cloud-Dienstes verantwortlich. Daher muss der Benutzer alle angemessenen Vorsichtsmaßnahmen ergreifen, um den Zugang und die Nutzung aller von ihm genutzten Hyland Cloud-Dienste zu schützen.
2.2 Nutzungsbeschränkungen. Der Benutzer darf einen Hyland Cloud-Dienst in keiner Weise nutzen, welche gegen geltendes Recht verstößt, einschließlich, aber nicht beschränkt auf:
(a) Verletzung oder widerrechtliche Aneignung von geistigen Eigentumsrechten, einschließlich Urheberrechten, Marken, Dienstleistungsmarken, Software, Patenten und Geschäftsgeheimnissen;
(b) Beteiligung an der Förderung, dem Verkauf, der Herstellung, der Erfüllung oder der Lieferung von illegalen Drogen, illegalem Glücksspiel, obszönem Material oder anderen gesetzlich verbotenen Produkten und Dienstleistungen. Ebenso ist die Aufforderung zu solch illegale Aktivitäten verboten, selbst wenn die Aktivitäten nicht tatsächlich durchgeführt werden;
(c) Das Anzeigen, Übertragen, Speichern oder Bereitstellen von kinderpornografischem Material;
(d) Das Übertragen, Verteilen oder Speichern von Material, das rechtswidrig ist, einschließlich Verschlüsselungssoftware, die gegen die US-, EU- und nationale Exportkontrollgesetze verstößt, oder das ein erhebliches Risiko zivilrechtlicher Haftung für Hyland darstellt;
(e) Das Anzeigen, Übertragen, Speichern oder Veröffentlichen von Informationen, die eine Beleidigung, Verleumdung, Diffamierung, Belästigung, Obszönität darstellen oder anderweitig die Privatsphäre oder die persönlichen Rechte einer Person verletzen;
(f) Das Anzeigen oder Übermitteln von obszönen, bedrohlichen, beleidigenden oder belästigenden Nachrichten; oder
(g) Förderung, Angebot oder Durchführung betrügerischer Finanzpläne, einschließlich Pyramiden, unrechtmäßigen Geldüberweisungen und Belastungen von Kreditkarten.
2.3 Verbotene Handlungen. Dem Benutzer ist es nicht gestattet, einen Hyland Cloud-Dienst zu nutzen, um eine der folgenden Handlungen vorzunehmen:
(a) Störung, unbefugter Zugriff auf oder anderweitige Verletzungen der Sicherheit von Servern, Netzwerken, PCs, Netzwerkzugangs- oder -kontrollgeräten, Software oder Daten oder anderen Systemen von Hyland oder einer anderen Partei oder der Versuch, eine der vorgenannten Handlungen auszuführen, einschließlich, aber nicht beschränkt auf die Entwicklung, Verbreitung oder Ausführung von Internetviren, Würmern, Denial-of-Service-Angriffen, Netzwerküberflutung oder anderen böswilligen Aktivitäten, die darauf abzielen, Computerdienste zu stören oder Daten zu zerstören;
(b) Störung des Hyland-Netzwerks oder der Nutzung des Hyland Cloud-Dienstes, durch andere autorisierte Benutzer;
(c) Das Bewerben oder Verbreiten von Software, Diensten oder Adresslisten, die den Zweck haben, Spam zu ermöglichen;
(d) Bereitstellung falscher oder irreführender Informationen in Nachrichtenkopfzeilen oder anderen Inhalten, Verwendung nicht existierender Domänennamen oder irreführender Adressierung oder Verbergen oder Verschleiern von Informationen, die den Ursprungsort oder Übertragungsweg einer Nachricht identifizieren;
(e) Verletzung von Persönlichkeitsrechten;
(f) Versenden und Sammeln von Antworten auf Spam, unerwünschte elektronische Nachrichten oder Kettenbriefe; und
3. DURCHSETZUNG. Wenn ein Benutzer gegen diese RAN verstößt, kann Hyland, je nach Art und Schwere des Verstoßes, das Hosting eines Hyland Cloud-Dienstes, auf den dieser Benutzer zugreift, so lange aussetzen, bis Maßnahmen ergriffen sind, die nach Hylands vernünftigem Ermessen eine Fortsetzung oder Wiederholung des Verstoßes ausschließen.
4. HINWEIS. Sofern dies nicht gesetzlich verboten ist, wird Hyland den Benutzer schriftlich per E-Mail oder auf andere Weise über einen Verstoß gegen diese RAN informieren, damit dieser Verstoß ohne Auswirkungen auf den Hyland Cloud-Dienst korrigiert werden kann. Hyland setzt dem Benutzer außerdem eine angemessene Frist, innerhalb derer der Benutzer diese RAN einhalten muss. Hyland behält sich jedoch das Recht vor, sofort und ohne vorherige Ankündigung zu handeln, um den Hyland Cloud-Dienst als Reaktion auf eine gerichtliche Anordnung oder eine behördliche Mitteilung, dass ein bestimmtes Verhalten des Benutzers eingestellt werden muss, auszusetzen oder wenn Hyland vernünftigerweise feststellt: (1) dass es Sanktionen, zivilrechtlicher Haftung oder strafrechtlicher Verfolgung ausgesetzt sein könnte; (2) dass ein solcher Verstoß die Integrität oder den normalen Betrieb oder die Sicherheit des Hyland-Netzwerks oder der Netzwerke, mit denen Hyland verbunden ist, schädigen oder beeinträchtigen könnte oder die Nutzung des Hyland Cloud-Dienstes, anderen Diensten oder Softwareprodukten durch einen anderen Hyland-Kunden beeinträchtigen könnte; oder (3) dass ein solcher Verstoß anderweitig eine unmittelbare Gefahr für Hyland oder andere Hyland-Kunden oder deren jeweilige Mitarbeiter darstellt. Anderfalls wird Hyland angemessene Anstrengungen unternehmen, um dem Benutzer eine Frist von mindestens sieben (7) Kalendertagen zu setzen, bevor der Hyland Cloud-Dienst ausgesetzt wird. Der Benutzer ist für alle Gebühren oder Entgelte verantwortlich, die Hyland bis zum Zeitpunkt der Aussetzung durch Hyland gemäß der zwischen dem Benutzer und Hyland bestehenden Vereinbarung in Bezug auf den Hyland Cloud-Dienst zu begleichen sind.
5. HAFTUNGSAUSSCHLUSS. Hyland lehnt jegliche Verantwortung für Schäden ab, die dem Benutzer als Folge der Reaktion von Hyland auf die Verletzung dieser RAN durch den Benutzer entstehen. Der Benutzer ist allein für die Inhalte und Nachrichten verantwortlich, die vom Benutzer über einen Hyland Cloud-Dienst übertragen oder zur Verfügung gestellt werden. Durch die Nutzung eines Hyland Cloud-Dienstes nimmt der Benutzer zur Kenntnis, dass Hyland nicht verpflichtet ist, Aktivitäten oder Inhalte auf Verstöße gegen geltendes Recht oder diese RAN zu überwachen, sich aber das Recht vorbehält, dies zu tun. Hyland lehnt jede Verantwortung für die unangemessene Nutzung eines Hyland Cloud-Dienstes durch den Benutzer und jegliche Haftung für die Verletzung dieser RAN oder geltenden Rechts durch Dritte ab.
6. ENTSCHÄDIGUNG. Der Benutzer erklärt sich damit einverstanden, Hyland von allen Verbindlichkeiten, Verpflichtungen, Verlusten und Schäden sowie von Kosten und Auslagen, einschließlich angemessener Anwaltskosten, freizustellen, die sich aus Ansprüchen, Schäden, Verlusten, Haftungen, Klagen oder Klagen Dritter gegen Hyland aufgrund schuldhaften Verhaltens des Benutzers, das gegen diese RAN verstößt, erhoben werden.
7. VERZICHT. Ein Versäumnis oder eine Verzögerung bei der Ausübung oder Durchsetzung dieser Richtlinie stellt keinen Verzicht auf die Richtlinie oder auf ein anderes Recht oder Rechtsmittel dar. Sollte eine Bestimmung dieser Richtlinie aufgrund eines Gesetzes oder einer Gesetzesänderung als nicht durchsetzbar erachtet werden, wird eine solche Bestimmung nicht berücksichtigt und der Rest der Richtlinie bleibt in Kraft.
8. FRAGEN. Wenn Sie sich nicht sicher sind, ob eine in Betracht gezogene Nutzung oder Handlung zulässig ist, wenden Sie sich bitte an Hyland unter der Nummer 440-788-5000.
Effective June 6th 2023
DownloadANEXO DE POLÍTICA DE USO ACEPTABLE
1. INTRODUCCIÓN.
Esta Política de Uso Aceptable ("AUP” por sus siglas en inglés) aplica a todas las personas y entidades (en su conjunto de denomina "Usuario") que utilizan los servicios y productos de software proporcionados por Hyland Software, Inc. o sus filiales ("Hyland") en relación con el alojamiento de Hyland de una o más Soluciones Alojadas (en su conjunto de denomina "Soluciones Alojadas"). Esta AUP está diseñada para proteger la seguridad, integridad, confiabilidad y privacidad de la red de Hyland y los alojamientos de las Soluciones Alojadas para sus clientes de hosting.
El uso de la Solución Alojada por parte del Usuario constituye la aceptación del Usuario de los términos y condiciones de esta AUP vigentes en el momento de dicho uso. Hyland se reserva el derecho de modificar esta política en cualquier momento a partir de la publicación de la modificación o AUP revisada en el sitio web de Hyland: https://www.hyland.com/community.
2. OBLIGACIONES DEL USUARIO.
2.1 Mal Uso. El Usuario es responsable por cualquier mal uso de la Solución Alojada; por lo tanto, debe tomar todas las precauciones razonables para proteger el acceso y uso de cualquier Solución Alojada que utilice.
2.2 Restricciones de Uso. El Usuario no debe usar una Solución Alojada de ninguna forma que viole la ley aplicable, incluyendo, entre otros, al:
(a) Infringir o apropiarse indebidamente de los derechos de propiedad intelectual, incluidos los derechos de autor, marcas registradas, marcas de servicio, software, patentes y secretos comerciales;
(b) Participar en la promoción, venta, producción o entrega de drogas ilegales, apuestas ilegales, materiales obscenos u otros productos y servicios prohibidos por la ley. Del mismo modo, solicitar actividades ilegales está prohibido incluso si tales actividades no se realizan realmente;
(c) Mostrar, transmitir, almacenar o poner a disposición materiales de pornografía infantil;
(d) Transmitir, distribuir o almacenar cualquier material que sea ilegal, incluyendo software de cifrado en violación de las leyes de control de exportaciones de los Estados Unidos, o que presente un riesgo material de responsabilidad civil para Hyland;
(e) Mostrar, transmitir, almacenar o publicar información que constituya difamación, calumnia, hostigamiento, obscenidad o que viole la privacidad o los derechos personales de cualquier persona;
(f) Mostrar o transmitir mensajes obscenos, amenazantes, abusivos u hostigadores; o
(g) Promover, ofrecer o implementar esquemas financieros fraudulentos, incluyendo pirámides, transferencias ilegales de fondos y cargos a tarjetas de crédito.
2.3 Actos Prohibidos. El Usuario no debe usar la Solución Alojada para ninguna de las actividades siguientes:
(a) Interferir con, obtener acceso no autorizado a o violar la seguridad del servidor, red, computadora personal, dispositivos de acceso o control de red, software, datos u otro sistema de Hyland o tercera parte, o intentar hacer algo de lo anterior, incluyendo, entre otros, el desarrollo, distribución o ejecución de virus de Internet, gusanos, ataques de denegación de servicio, inundación de la red u otras actividades maliciosas destinadas a interrumpir los servicios informáticos o destruir datos;
(b) Interferir con la red de Hyland o con el uso de Soluciones Alojadas recibidas de otros Usuarios autorizados;
(c) Promover o distribuir software, servicios o directorios que tengan el propósito de facilitar el correo no deseado;
(d) Proporcionar información falsa o engañosa en encabezados de mensajes y otro contenido, usar nombres de dominios no existentes o direcciones engañosas, o esconder información que identifique el punto de origen o ruta de transmisión de un mensaje;
(e) Violar los derechos de privacidad personal;
(f) Enviar respuestas al correo no deseado, mensajes electrónicos no solicitados o cadena de correos, y
(g) Participar en actividades que Hyland crea, a su juicio, puedan ser dañinas para las operaciones, imagen pública o reputación de Hyland.
3. CUMPLIMIENTO. Si un Usuario viola esta AUP, Hyland puede, dependiendo de la naturaleza y gravedad de la violación, suspender el alojamiento de cualquier Solución Alojada a la que acceda dicho Usuario durante el tiempo que sea necesario para tomar medidas que, a juicio razonable de Hyland, eviten que la violación continúe u ocurra de nuevo.
4. NOTIFICACIONES. A menos que lo prohíba la ley, Hyland debe proporcionarle al Usuario una notificación escrita por correo electrónico o de otra forma sobre la violación de esta AUP para que se corrija sin afectar el alojamiento de las Soluciones Alojadas; Hyland también debe proporcionarle al Usuario una fecha límite para que cumpla con la AUP. Sin embargo, Hyland se reserva el derecho de actuar inmediatamente y suspender el alojamiento de las Soluciones Alojadas sin previo aviso en respuesta a una orden judicial o notificación gubernamental indicando que se debe suspender cierta conducta del Usuario o cuando Hyland determine: (1) que puede estar expuesto a sanciones, responsabilidad civil o enjuiciamiento; (2) que dicha violación puede dañar o interferir con la integridad o las operaciones normales o la seguridad de la red o redes de Hyland con las que Hyland está interconectada, o interferir con el uso que hace otro cliente de Hyland de los servicios o productos de software de Hyland, o (3) que dicha violación presenta un riesgo inminente de daño para Hyland u otros clientes de Hyland o sus respectivos empleados. En otras circunstancias, Hyland tomará las acciones que resulten comercialmente razonables para proporcionarle al Usuario un aviso por lo menos siete (7) días calendario antes de suspender el alojamiento de las Soluciones Alojadas. El Usuario es responsable de todos los cargos o tarifas que se le deben a Hyland hasta el punto de la suspensión, según el acuerdo existente entre el Usuario y Hyland con relación a las Soluciones Alojadas.
5. DESCARGO DE RESPONSABILIDAD. Hyland no asume ninguna responsabilidad por los daños y perjuicios sufridos por el Usuario como resultado de la respuesta de Hyland a la violación de esta AUP por parte del Usuario. El Usuario es el único responsable del contenido y mensajes transmitidos o puestos a disposición usando una Solución Alojada. Al utilizar una Solución Alojada, el Usuario reconoce que Hyland no tiene la obligación de monitorear las actividades o contenido para ver si violan alguna ley aplicable o esta AUP, pero se reserva el derecho de hacerlo. Hyland rechaza cualquier responsabilidad por el uso inadecuado de una Solución Alojada por parte del Usuario y cualquier responsabilidad por la violación a esta AUP o ley aplicable de un tercero.
6. INDEMNIZACIÓN. El Usuario acepta indemnizar a Hyland por y contra todas las responsabilidades, obligaciones, pérdidas y daños y perjuicios, más los costos y gastos, incluyendo los honorarios razonables de abogados, que surjan de cualquier reclamo, daño, pérdida, responsabilidad, demanda o acción presentada contra Hyland por un tercero como resultado de la conducta del Usuario que viola esta AUP.
7. EXENCIÓN. Ninguna falla o retraso en el cumplimiento de esta política constituirá una exención a la política o a ningún otro derecho o resarcimiento. Si no se puede cumplir alguna disposición de esta política debido a alguna ley o cambio en la ley, dicha disposición deberá ser ignorada y el resto de la política se mantendrá en vigor.
8. PREGUNTAS. Si el Usuario no está seguro si tiene permitido algún uso o acción debe contactar a Hyland al 440-788-5000.
Effective June 6th 2023
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1. INTRODUCTION.
La présente Politique d'Utilisation Acceptable (la « PUA ») s'applique à toute personne physique ou morales qui utilise les services et logiciels (collectivement, l’« Utilisateur ») fournis par Hyland Software, Inc. ou ses affiliées (« Hyland ») en lien avec le Service Cloud Hyland. La PUA vise à protéger la sécurité, l'intégrité, la fiabilité et la confidentialité du réseau de Hyland et des Services Cloud Hyland que Hyland héberge pour les clients de ses services d’hébergement.
L'utilisation du Service Cloud Hyland par l’Utilisateur vaut acceptation par ce dernier des termes de la PUA en vigueur à la date d’utilisation dudit service. Hyland se réserve le droit de modifier la PUA à tout moment, toute nouvelle version prenant effet à la date de la publication par Hyland de la modification considérée ou de la PUA révisée, sur son site internet: https://www.hyland.com/community.
2. OBLIGATIONS DE L’UTILISATEUR.
2.1 Mauvaise utilisation. L'Utilisateur est seul responsable de toute utilisation inappropriée d'un Service Cloud Hyland. L'Utilisateur prend donc toutes précautions raisonnables afin de protéger l'accès au(x) et l'utilisation du/des Service Cloud Hyland qu'il utilise.
2.2 Restrictions d'utilisation. L'Utilisateur s’interdit toute utilisation du Service Cloud Hyland en violation de toute loi applicable, en ce compris, sans que cette liste soit exhaustive:
(a) en contrefaisant des ou faisant appropriation illicite de droits de propriété intellectuelle, en ce compris les droits d'auteur, les droits sur les marques, les logiciels, les brevets et les secrets commerciaux;
(b) en promouvant, vendant, produisant, réalisant ou fournissant des drogues ou jeux d'argent illégaux, des produits obscènes ou tout autre produit ou service interdit par la loi. De même, la sollicitation d'activités illégales est interdite, quand bien même ces activités ne seraient pas effectivement réalisées;
(c) en affichant, transmettant, stockant ou rendant disponibles des éléments pédopornographiques;
(d) en transmettant, distribuant ou stockant tout élément illégal, y compris tout logiciel de cryptage en violation des lois américaines – ou de toute autre juridiction, le cas échéant – sur le contrôle des exportations, ou susceptible d’engager la responsabilité civile de Hyland;
(e) en affichant, transmettant, stockant ou publiant des informations qui constituent une diffamation, du harcèlement, une obscénité, ou qui violent de toute autre manière la vie privée ou les droits personnels de tout individu;
(f) en affichant ou transmettant des messages obscènes, menaçants, abusifs ou de harcèlement; ou
(g) en promouvant, proposant ou mettant en œuvre des mécanismes financiers frauduleux, notamment des modèles financiers pyramidaux (« pyramid schemes ») , transferts de fonds illégaux et frais sur les cartes de crédit.
2.3 Actes Prohibés. L'Utilisateur s’interdit d’utiliser le Service Cloud Hyland pour se livrer à l'un quelconque des actes suivants:
(a) interférer avec, obtenir un accès non autorisé au ou violer de toute autre manière la sécurité du serveur, du réseau, d’un ordinateur personnel, des dispositifs d'accès ou de contrôle du réseau, des logiciels ou des données, ou de tout autre système de Hyland ou d’un tiers, ou tenter de faire ce qui précède, en ce compris, mais sans s'y limiter, en utilisant le Service Cloud Hyland dans le développement, la distribution ou l'exécution de virus, de vers, d'attaques par déni de service, d'inondations de réseau ou autres activités malveillantes destinées à perturber des services informatiques ou à détruire des données;
(b) interférer avec le réseau de Hyland ou l'utilisation et la jouissance, par ou pour d’autres Utilisateurs autorisés, des Services Cloud Hyland;
(c) promouvoir ou distribuer des logiciels, des services ou des listes d'adresses dont l’objet est de faciliter les spams;
(d) fournir des informations erronées ou trompeuses en en-têtes des messages ou tout d'autre contenu, utiliser des noms de domaine inexistants ou un adressage trompeur, ou cacher ou obscurcir les informations permettant d'identifier le point d'origine ou le chemin de transmission d'un message;
(e) violer les droits à la vie privée, sauf les cas autorisés par la loi;
(f) envoyer des spams et collecter les réponses qui y sont apportées, des messages électroniques non sollicités ou des chaînes de courriels; et
(g) s'engager dans toute activité que Hyland considère, à sa seule discrétion, comme pouvant être nuisible aux opérations, à l'image ou à la réputation de Hyland.
3. EXÉCUTION. En cas de manquement d’un Utilisateur aux termes de la PUA, et en fonction de la nature et de la gravité dudit manquement, Hyland se réserve le droit de suspendre l’hébergement de tout Service Cloud Hyland auquel cet Utilisateur a accès et ce, pour la durée nécessaire à la mise en place des mesures qui, selon Hyland, permettront de mettre fin audit manquement et en préviendront la poursuite ou répétition.
4. NOTIFICATION. Excepté les cas prévus par la loi, Hyland notifie par écrit à l'Utilisateur, par courriel ou par tout autre moyen, tout manquement à la PUA afin qu’il puisse y être remédié, sans impact sur le Service Cloud Hyland ; Hyland indique également à l'Utilisateur le délai dans lequel celui-ci doit se mettre en conformité avec la PUA. Hyland se réserve toutefois le droit de suspendre sans préavis, et sans délai, le Service Cloud Hyland en réponse à une décision de justice ou administrative indiquant que certains comportements de l'Utilisateur doivent cesser, ou lorsque Hyland considère: (1) qu'elle peut être exposée à une sanction, voir sa responsabilité civile engagée ou qu’elle s’expose à des poursuites; (2) que ce manquement est susceptible de causer un préjudice ou interférer avec l'intégrité ou les opérations normales ou la sécurité du réseau de Hyland ou des réseaux avec lesquels Hyland est interconnectée, ou interférer avec l'utilisation par un autre client de Hyland des Services Cloud Hyland, d'autres services ou logiciels; ou (3) que ce manquement présente un quelconque risque imminent de préjudice pour Hyland ou d'autres clients de Hyland ou leurs salariés respectifs. Sous réserve de ce qui précède, Hyland s’efforce d’allouer à l'Utilisateur un préavis d'au moins sept (7) jours calendaires avant la suspension du Service Cloud Hyland. L'Utilisateur est responsable de l’ensemble des montants dus à Hyland jusqu'au moment de la suspension par Hyland, conformément au contrat en vigueur entre l'Utilisateur et Hyland concernant les Services Cloud Hyland.
5. EXCLUSION DE RESPONSABILITÉ. Hyland décline toute responsabilité en cas de dommage subi par l'Utilisateur suite à la réponse de Hyland à un manquement de la PUA par l'Utilisateur. L'Utilisateur est seul responsable du contenu et des messages transmis ou qu’il met à disposition en utilisant un Service Cloud Hyland. En ayant recours à un Service Cloud Hyland, l'Utilisateur reconnaît que Hyland se réserve le droit mais n’est pas tenue de surveiller toute activité ou tout contenu, afin d’identifier un manquement à la loi applicable ou la PUA. Hyland décline toute responsabilité quant à l'utilisation inappropriée d'un Service Cloud Hyland par l'Utilisateur et ne pourra en aucun cas être tenue responsable de la violation par un tiers de la PUA ou de toute loi applicable.
6. INDEMNISATION. L'Utilisateur s’engage à indemniser Hyland de et contre toutes responsabilités, obligations, pertes et dommages, ainsi que les coûts et dépenses associés, en ce compris les frais d'avocat raisonnables, résultant de toute réclamation, dommage, perte, responsabilité, poursuite ou action intentée contre Hyland par un tiers suite à un manquement de l’Utilisateur à la PUA.
7. TOLERANCE ET NULLITE PARTIELLE. Le fait de renoncer ou invoquer tardivement ou de ne pas invoquer l’application de la PUA ne saurait valoir, pour l'avenir, renonciation à invoquer la PUA ou à tout autre droit ou recours. Si une stipulation de la présente politique se révélait inexécutoire ou contraire à une disposition légale impérative ou un changement de loi, ce caractère inexécutoire ou invalide n'affecte en rien la validité des autres stipulations de la PUA qui reste en vigueur.
8. QUESTIONS. Si vous n'êtes pas sûr qu'une utilisation ou une action envisagée soit autorisée, veuillez contacter Hyland, au 440-788-5000.
Effective June 6th 2023
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1. INTRODUÇÃO.
Esta Política de Uso Aceitável (esta "AUP") aplica-se a todas as pessoas e entidades (coletivamente referidas nesta AUP como "Usuário") que usam os serviços e produtos de software fornecidos pela Hyland Software, Inc. ou suas afiliadas (“Hyland”) em conexão com o Serviço de Nuvem da Hyland. Esta AUP foi projetada para proteger a segurança, integridade, confiabilidade e privacidade da rede da Hyland e os Serviços de Nuvem da Hyland que a Hyland hospeda para seus clientes de hospedagem.
O uso do Serviço de Nuvem da Hyland pelo Usuário constitui a aceitação pelo Usuário dos termos e condições desta AUP em vigor no momento de tal uso. A Hyland se reserva o direito de modificar esta política a qualquer momento, sendo esta modificação ou AUP revisada efetiva imediatamente após a publicação pela Hyland no site da Hyland: https://www.hyland.com/community.
2. OBRIGAÇÕES DO USUÁRIO.
2.1 Uso Indevido. O usuário é responsável por qualquer uso indevido de um Serviço de Nuvem da Hyland. Portanto, o Usuário deve tomar todas as precauções razoáveis para proteger o acesso e o uso de qualquer Serviço de Nuvem da Hyland que usar.
2.2 Restrições de Uso. O Usuário não deve usar um Serviço de Nuvem da Hyland de nenhuma maneira que viole a lei aplicável, incluindo, sem limitação:
(a) Violação ou apropriação indevida de direitos de propriedade intelectual, incluindo direitos autorais, marcas, software, patentes e segredos comerciais;
(b) Envolver-se na promoção, venda, produção, cumprimento ou entrega de drogas ilegais, jogos ilegais, materiais obscenos ou outros produtos e serviços proibidos por lei. Da mesma forma, é proibido solicitar atividades ilegais, mesmo que essas atividades não sejam realmente executadas;
(c) Exibição, transmissão, armazenamento ou disponibilização de material de pornografia infantil;
(d) Transmissão, distribuição ou armazenamento de qualquer material ilegal, incluindo software de criptografia que viole as leis de controle de exportação dos EUA ou que apresente um risco substancial de responsabilidade civil para a Hyland;
(e) Exibição, transmissão, armazenamento ou publicação de informações que constituam calúnia, ofensa, difamação, assédio, obscenidade ou que de outra forma violem a privacidade ou os direitos pessoais de qualquer pessoa;
(f) Exibição ou transmissão de mensagens obscenas, ameaçadoras, abusivas ou assediadoras; ou
(g) Promoção, oferta ou implementação de esquemas financeiros fraudulentos, incluindo pirâmides, transferências ilegítimas de fundos e cobranças em cartões de crédito.
2.3 Atos Proibidos. O Usuário não deve usar um Serviço de Nuvem da Hyland para se envolver em qualquer um dos seguintes atos:
(a) Interferir, obtendo acesso não autorizado ou de outra forma violando a segurança do servidor, rede, computador pessoal, dispositivos de acesso ou controle de rede, software ou dados ou outro sistema da Hyland ou de terceiros, ou tentar realizar qualquer uma das ações acima, incluindo, sem limitação, o uso no desenvolvimento, distribuição ou execução de vírus da Internet, worms, ataques de negação de serviço, inundação da rede ou outras atividades mal-intencionadas destinadas a interromper os serviços de computador ou destruir dados;
(b) Interferir na rede da Hyland ou no uso e aproveitamento do Serviço de Nuvem da Hyland recebidos por outros Usuários autorizados;
(c) Promover ou distribuir software, serviços ou listas de endereços com o objetivo de facilitar o spam;
(d) Fornecer informações falsas ou enganosas em títulos de mensagens ou outro conteúdo, usando nomes de domínio inexistentes ou endereçamento enganoso, ou ocultar ou encobrir informações que identifiquem o ponto de origem ou a via de transmissão de uma mensagem;
(e) Violar direitos de privacidade pessoal;
(f) Enviar e coletar respostas a spam, mensagens eletrônicas não solicitadas ou mensagens em cadeia; e
(g) Envolver-se em qualquer atividade que a Hyland acredite, a seu exclusivo critério, que possa ser prejudicial às operações, imagem ou reputação pública da Hyland.
3. CUMPRIMENTO. Se um Usuário violar esta AUP, a Hyland poderá, dependendo da natureza e gravidade da violação, suspender a hospedagem de qualquer Serviço de Nuvem da Hyland que esse Usuário acessa pelo tempo necessário para que sejam tomadas medidas que, no julgamento razoável da Hyland, impedirão a violação de continuar ou reincidir.
4. NOTIFICAÇÃO. A menos que seja proibido por lei, a Hyland fornecerá ao Usuário uma notificação por escrito por e-mail ou de outra forma sobre uma violação desta AUP, para que tal violação possa ser corrigida sem impacto no Serviço de Nuvem da Hyland; A Hyland também fornecerá ao Usuário um prazo para que o Usuário esteja em conformidade com esta AUP. A Hyland se reserva o direito, no entanto, de agir imediatamente e sem aviso prévio para suspender o Serviço de Nuvem da Hyland em resposta a uma ordem judicial ou notificação governamental de que determinada conduta do Usuário deve ser interrompida ou quando a Hyland determinar razoavelmente: (1) que possa estar exposta a sanções, responsabilidade civil ou ação penal; (2) que tal violação pode causar danos ou interferir na integridade ou operações normais ou segurança da rede ou redes da Hyland com as quais a Hyland está interconectada ou interferir no uso do Serviço de Nuvem da Hyland de outro Cliente da Hyland, outros serviços ou produtos de software; ou (3) que tal violação apresente risco iminente de danos à Hyland ou a outros clientes da Hyland ou seus respectivos empregados. Em outras situações, a Hyland envidará esforços razoáveis para fornecer ao Usuário um aviso com pelo menos 7 (sete) dias corridos de antecedência antes de suspender o Serviço de Nuvem da Hyland. O Usuário é responsável por todas as cobranças ou taxas devidas à Hyland até o momento de suspensão pela Hyland, de acordo com o contrato em vigor entre o Usuário e a Hyland relacionado aos Serviços de Nuvem da Hyland.
5. ISENÇÃO DE RESPONSABILIDADE. A Hyland se isenta de qualquer responsabilidade por danos sofridos pelo Usuário como resultado da resposta da Hyland à violação desta AUP pelo Usuário. O Usuário é o único responsável pelo conteúdo e mensagens transmitidas ou disponibilizadas pelo Usuário usando um Serviço de Nuvem da Hyland. Ao usar um Serviço de Nuvem da Hyland, o Usuário reconhece que a Hyland não tem obrigação de monitorar nenhuma atividade ou conteúdo quanto a violações da lei aplicável ou desta AUP, mas reserva-se o direito de fazê-lo. A Hyland se isenta de qualquer responsabilidade pelo uso inadequado de um Serviço de Nuvem da Hyland pelo usuário e de qualquer responsabilidade por violação de terceiros desta AUP ou lei aplicável.
6. INDENIZAÇÃO. O Usuário concorda em indenizar a Hyland de e contra todas as responsabilidades, obrigações, perdas e danos, além de custos e despesas, incluindo honorários advocatícios razoáveis, decorrentes de qualquer reclamação, dano, perda, responsabilidade, processo ou ação movida contra a Hyland por terceiros, como resultado da conduta do Usuário que viola esta AUP.
7. RENÚNCIA. Nenhuma falha ou atraso no exercício ou no cumprimento desta política constituirá uma renúncia à política ou a qualquer outro direito ou medida. Se qualquer disposição desta política for considerada inexequível devido à lei ou mudança na lei, tal disposição será desconsiderada e as demais disposições da política permanecerão em vigor.
8. DÚVIDAS. Se você não tiver certeza se algum uso ou ação contemplada é permitida, entre em contato com a Hyland pelo telefone XX-1-440-788-5000.
Effective September 28th 2022 to June 6th 2023
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Effective March 30th 2021 to September 28th 2022
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HxP Acceptable Use Policy
Effective March 16th 2021
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HxP and Sharebase Privacy Policy
Effective March 26th 2021
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- To improve the Service and our other products;
- To continuously evaluate and improve user experience;
- To respond to emails or other requests, comments, or questions;
- To provide customer support;
- To provide you or our Customer with information that we believe may be useful, such as information about products or services we offer;
- To comply with applicable laws, regulations, or legal process as well as industry standards and our company policies;
- To prevent fraud or other misuse, including to protect our rights and the rights of affiliated companies or related third parties;
- To report suspected criminal acts;
- To maintain records of our transactions and communications; or
- To monitor and analyze trends, usage, and activities of users.
- Hyland Affiliates. As an international organization, Personal Information about you may be shared globally throughout Hyland’s international organization. A list of Hyland entities and their contact information is available here. Personal Information may be shared with affiliated companies for any of the purposes set forth in the section above titled “How We Use Your Information.”
- Third Party Service Providers Under Contract with Hyland. For example, data analytics providers, data center providers, website management, law firms, auditors, performance service providers, and other similar providers. We share your Personal Information with these Service Providers so that they can perform certain business functions on Hyland’s behalf.
- Third Party Solution Providers under contract with Hyland. To allow third parties that resell Hyland products and services (“Solution Provider”) to provide customer support and analyze trends, usage, and activities related to users affiliated with that Solution Provider’s customers.
- Other Unaffiliated Third Parties. We may also share your Personal Information with other unaffiliated third parties for the following purposes:
- Required Disclosures. To comply with a court proceeding, in response to a court order, subpoena, civil discovery request, other legal process, or as otherwise required by law.
- Government Agencies. To response to a request by a government agency.
- Legal Compliance and Protections: To comply with the law or to protect the rights, property, or safety of Hyland, our users, or others. This may include sharing information, including Personal Information, with other companies and organizations for fraud protection and credit risk reduction.
- Corporate Transactions: To disclose and transfer your data, including your Personal Information, if applicable:
- To a subsequent owner, co-owner, or operator of the Service or successor database.
- In connection with a corporate merger, consolidation, bankruptcy, the sale of substantially all of our membership interests and/or assets or other corporate change, including to any prospective purchasers.
- To prevent your information from being used by Google Analytics:
- you can install Google’s opt-out browser add-on: https://tools.google.com/dlpage/gaoptout.
- from your android or iOS device, follow these instructions: (1) open the menu located in the upper left corner of the ShareBase Mobile Application,(2) selected the Settings menu; and (3) toggle switch next to “Share Usage Statistics” to “off.”
- To opt out of interest-based advertising, you can visit http://optout.networkadvertising.org/#!/ and follow NAI’s on-screen instructions. Note that if you opt out through the NAI, you will still receive advertising, but the advertising will not be tailored to your interests. In addition, if you opt out through NAI and later delete your cookies, use a different browser, or buy a new device, you will need you opt out of interest-based advertising again.
- Check your mobile device for settings that control ads based on your interactions with the applications on your device. For example, on your iOS device, enable the “Limit Ad Tracking” setting, and on your Android device, enable the “Opt out of Ads Personalization” setting.
- Confirmation that Hyland processes your Personal Information;
- Access to your Personal Information from Hyland;
- Correction of your Personal Information if incomplete, inaccurate, or out-of-date;
- Anonymization, blocking or deletion of unnecessary or excessive Personal Information or Personal Information processed in noncompliance with the provisions of Brazil’s data protection law;
- Portability of your Personal Information to another service or product provider, by means of an express request and subject to commercial and industrial secrecy as long as that Personal Information has not already been anonymized at the time of your request;
- Deletion of personal data processed with the consent of the data subject;
- Information about public and private entities with which Hyland has shared your Personal Information; and
- Information about the possibility of denying consent and the consequences of such denial.
- Essential Cookies: These are cookies that are strictly necessary for the functioning of the website or for performing services that an individual user has requested. Some examples of functions performed by essential cookies are cookies that remember previous actions (e.g., entered text) when navigating back to a page in the same session.
- Analytical Cookies: These cookies collect information about how visitors use a website, for instance which pages visitors go to most often, and if they get error messages from web pages. These cookies don’t collect information that identifies a visitor. All information that analytical cookies collect is aggregated and therefore anonymous. These cookies are used only to improve how a website functions.
- Functional Cookies: These cookies allow the website to remember choices users make and to provide enhanced, personalized features. For example, on our website, these cookies remember users’ language preferences.
- Persistent Cookies: Persistent cookies remain on your device until deleted manually or automatically.
- What web pages you visit on the Service and how long you visit them;
- Information about how you navigate, use, and interact with the Service;
- Your IP address, device identifiers and signatures, and browser type; and
- The language you’ve chosen to read the website.
Hyland Software, Inc.
Attn: PRIVACY INQUIRY
Westlake OH, 44145
Hyland Experience Technical Support
Effective May 3rd 2024
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Technical Support Levels | |||
Digital | Premier | Signature | |
Initial Response Target | N/A | P1 and P2: 60 minutes* P3 and P4: 1 Business Day P5 and P6: 2 Business Days | P1 and P2: 30 minutes* P3 and P4: 1 Business Hour P5 and P6: 4 Business Hours |
Issue Update Frequency Target | N/A | P1 and P2: Hourly P3 - P6: 2 Business Days | P1 and P2: Conference bridge** P3 - P6: Business Daily |
Priority Level | Description | Hyland Response |
Level 1 (P1) | Total or substantial failure of Hyland Experience. | Hyland will match Customer’s effort, up to and including 24-hour days, 7 days a week. |
Level 2 (P2) | All of Customer’s users are unable to access an entire portion of Hyland Experience. | Hyland will match Customer’s effort, up to and including 24-hour days, 7 days a week. |
Level 3 (P3) | Hyland Experience is usable except there is an ongoing, system-wide, severe performance degradation. | Hyland will match Customer’s efforts during Business Days, up to 16 hours/day. |
Level 4 (P4) | Hyland Experience is usable except a specific feature or functionality is not working. | Hyland will use reasonable efforts during Business Hours. |
Level 5 (P5) | Hyland Experience is usable except for a trivial inconvenience. | Hyland will use reasonable efforts during Business Hours. |
Level 6 (P6) | All other matters, including “how to” requests and questions about the Documentation. | Hyland will use reasonable efforts during Business Hours. |
Effective March 30th 2021 to May 3rd 2024
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Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Experience Service that causes total or substantial Hyland Experience Service failure, which means that the Hyland Experience Service is down and Customer is unable to access the Hyland Experience Service in any way. | Upon receiving notification from Customer, Hyland’s support Team Leader will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Experience Service that causes substantial Hyland Experience Service failure which prevents a portion of Customer’s users from accessing the Hyland Experience Service in any way. | Upon receiving notification from Customer, Hyland’s support Team Leader will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Experience Service is usable except that an error or issue in the Hyland Experience Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Experience Service is usable except that an error or issue in the Hyland Experience Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use commercially reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Experience Service is usable except that an error or issue in the Hyland Experience Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Experience Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Experience Service Support. |
Hyland Experience Security
Effective May 3rd 2024
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Effective March 30th 2021 to May 3rd 2024
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- Risk Management.
- Conducting an annual risk assessment designed to identify threats and vulnerabilities in the administrative, physical, legal, regulatory, and technical safeguards used to protect the Hyland Experience Service.
- Maintaining a documented risk remediation process to assign ownership of identified risks, establish remediation plans and timeframes, and provide for periodic monitoring of progress.
- Information Security Program.
- Maintaining a documented comprehensive Hyland Experience Service information security program. This program will include policies and procedures based on industry standard practices, which may include ISO 27001/27002, or other equivalent standards.
- Such information security program shall include, as applicable: (i) adequate physical and cyber security where Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to Hyland personnel employment.
- These policies will be reviewed and updated by Hyland management annually.
- Organization of Information Security. Assigning security responsibilities to appropriate Hyland individuals or groups to facilitate protection of the Hyland Experience Service and associated assets.
- Human Resources Security.
- Hyland employees undergo comprehensive screening during the hiring process. Background checks and reference validation will be performed to determine whether candidate qualifications are appropriate for the proposed position. Subject to any restrictions imposed by applicable law and based on jurisdiction, these background checks include criminal background checks, employment validation, and education verification as applicable.
- Ensuring all Hyland employees are subject to confidentiality and non-disclosure commitments before access is provisioned to the Hyland Experience Service or Customer Data.
- Ensuring applicable Hyland employees receive security awareness training designed to provide such employees with information security knowledge to provide for the security, availability, and confidentiality of Customer Data.
- Upon Hyland employee separation or change in roles, Hyland shall ensure any Hyland employee access to the Hyland Experience Service is revoked in a timely manner and all applicable Hyland assets, both information and physical, are returned.
- Asset Management.
- Maintaining asset and information management policies and procedures. This includes ownership of assets, an inventory of assets, classification guidelines, and handling standards pertaining to Hyland assets.
- Maintaining media handling procedures to ensure media containing Customer Data as part of the Hyland Experience Service is encrypted and stored in a secure location subject to strict physical access controls.
- When a Hyland Experience Service storage device has reached the end of its useful life, procedures include a decommissioning process that is designed to prevent Customer Data from being exposed to unauthorized individuals using the techniques recommended by NIST to destroy data as part of the decommissioning process.
- If a Hyland storage device is unable to be decommissioned using these procedures, the device will be virtually shredded, degaussed, purged/wiped, or physically destroyed in accordance with industry-standard practices.
- Access Controls.
- Maintaining a logical access policy and corresponding procedures. The logical access procedures will define the request, approval and access provisioning process for Hyland personnel. The logical access process will restrict Hyland user (local and remote) access based on Hyland user job function (role/profile based, appropriate access) for applications and databases. Hyland user access recertification to determine access and privileges will be performed periodically. Procedures for onboarding and offboarding Hyland personnel users in a timely manner will be documented. Procedures for Hyland personnel user inactivity threshold leading to account suspension and removal threshold will be documented.
- Limiting Hyland’s access to Customer Data to its personnel who have a need to access Customer Data as a condition to Hyland’s performance of the services under this Agreement. Hyland shall utilize the principle of “least privilege” and the concept of “minimum necessary” when determining the level of access for all Hyland users to Customer Data. Hyland shall require strong passwords subject to complexity requirements and periodic rotation and the use of multi-factor authentication.
- Ensuring strict access controls are in place for Customer Data access by Hyland. Customer administrators control its user access, user permissions, and Customer Data retention to the extent such controls are available to Customer with respect to the Hyland Experience Service.
- System Boundaries.
- Hyland is not responsible for any system components that are not within the Hyland Cloud Platform, including network devices, network connectivity, workstations, servers, and software owned and operated by the Customer or other third parties. Hyland may provide support for these components at its reasonable discretion.
- The processes executed within the Hyland Cloud Platform are limited to those that are executed by a Hyland employee (or Hyland authorized third party) or processes that are executed within Hyland’s established system boundaries, in whole. This includes, but is not limited to, hardware installation, software installation, data replication, data security, and authentication processes.
- Certain business processes may cross these boundaries, meaning one or more tasks are executed outside of Hyland’s established system boundaries for the Hyland Cloud Platform, one or more tasks are executed by individuals who are not Hyland personnel (or authorized third-parties), or one or more tasks are executed based on written requests placed by Customer. In such event, Hyland will provide support for such processes to the extent they occur within Hyland’s established system boundaries, but Hyland is not responsible for providing support for such processes to the extent they occur outside of such established system boundaries. At its reasonable discretion, Hyland may provide limited support for processes that occur outside such established system boundaries for the Hyland Cloud Platform. Examples of business processes that cross these boundaries include, but are not limited to, Hyland Experience Service configuration changes, processing that occurs within the Hyland Experience Service, user authorization, and file transfers.
- Encryption.
- Customer Data shall only be uploaded to the Hyland Experience Services in an encrypted format such as via SFTP, TLS, or other equivalent method.
- Customer Data shall be encrypted at rest.
- Where use of encryption functionality may be controlled or modified by Customer, in the event Customer elects to modify the use of or turn off any encryption functionality, Customer does so at its own risk.
- Physical and Environment Security.
- The Hyland Cloud Platform uses data centers or third party service providers who have demonstrated compliance with one or more of the following standards (or a reasonable equivalent): International Organization for Standardization (“ISO”) 27001 and/or American Institute of Certified Public Accountants (“AICPA”) Service Organization Controls (“SOC”) Reports for Services Organizations. These providers provide Internet connectivity, physical security, power, and environmental systems and other services for the Hyland Cloud Platform.
- Hyland uses architecture and technologies designed to promote both security and high availability.
- Operations Security.
- Maintaining documented Hyland cloud operating procedures.
- Maintaining change management controls to ensure changes to Hyland Experience Service production systems made by Hyland are properly authorized and reviewed prior to implementation. Customer is responsible for testing all configuration changes, authentication changes and upgrades implemented by Customer or implemented by Hyland at the request of Customer prior to production use of the Hyland Experience Service. In cases where the Customer relies upon Hyland to implement changes on its behalf, a written request describing the change must be submitted (e.g. an e-mail, or another method provided by Hyland) by Customer’s designated Customer Security Administrators (“CSAs”) or set forth in a Services Proposal. Hyland will make scheduled configuration changes that are expected to impact Customer access to their Hyland Experience Service during a planned maintenance window. Hyland may make configuration changes that are not expected to impact Customer during normal business hours.
- Monitoring usage and capacity levels within the Hyland Cloud Platform to adequately and proactively plan for future growth.
- Utilizing virus and malware protection technologies, which are configured to meet common industry standards designed to protect the Customer Data and equipment located within the Hyland Cloud Platform from virus infections or similar malicious payloads.
- Implementing disaster recovery and business continuity procedures. These will include replication of Customer Data to a secondary location.
- Maintaining a system and security logging process to capture system logs deemed critical by Hyland. These logs shall be maintained for at least six months and reviewed on a periodic basis.
- Maintaining system hardening requirements and configuration standards for components deployed within the Hyland Cloud Platform. Ensuring servers, operating systems, and supporting software used in the Hyland Cloud Platform receive all Critical and High security patches within a timely manner, but in no event more than 90 days after release, subject to the next sentence. In the event any such security patch would materially adversely affect the Hyland Experience Service, then Hyland will use reasonable efforts to implement compensating controls until a security patch is available that would not materially adversely affect the Hyland Experience Service.
- Conducting Hyland Cloud Platform vulnerability scans or analysis on at least a quarterly basis and remediate all critical and high vulnerabilities identified in accordance with its patch management procedures.
- Conducting Hyland Cloud Platform penetration tests at least annually.
- Communications Security
- Implementing Hyland Cloud Platform security controls to protect information resources within the Hyland Cloud Platform.
- When supported, upon implementation and once annually thereafter, Customer may request Hyland limit access to Customer’s Hyland Experience Service to a list of pre-defined IP addresses at no additional cost.
- Supplier Relationships. Maintaining a Vendor Management Program for its critical vendors. This program will ensure critical vendors are evaluated on an annual basis.
- Security Incident.
- Employing incident response standards that are based upon applicable industry standards, such as ISO 27001 and National Institute for Standards and Technology (“NIST”), to maintain the information security components of the Hyland Experience Service environment.
- Responses to these incidents follow the Hyland documented incident response sequence. This sequence includes the incident trigger phase, evaluation phase, escalation phase, response phase, recovery phase, de-escalation phase, and post-incident review phase.
- If Hyland has determined Customer’s Hyland Experience Service has been negatively impacted by a security incident, Hyland will deliver a root cause analysis summary. Such notice will not be unreasonably delayed, but will occur after initial corrective actions have been taken to contain the security threat or stabilize the Hyland Experience Service.
- The root cause analysis will include the duration of the event, resolution, technical summary, outstanding issues, and follow-up, including steps Customer needs to take in order to prevent further issues. Hyland Experience Service information including data elements that require additional confidentiality and security measures (including that of other customers impacted in the event) will not be publicly disclosed. If Customer needs additional details of an incident, a request to the Hyland GCS Support team must be submitted and handled on a case by case basis. The release of information process may require an on-site review to protect the confidentiality and security of the requested information.
- Hyland will notify Customer of a Security Incident within 48 hours. A “Security Incident” means a determination by Hyland of an actual disclosure of unencrypted Customer Data to an unauthorized person or entity that compromises the security, confidentiality, or integrity of the Customer Data.
- Information Security Aspects of Business Continuity Management.
- Maintaining a business continuity and disaster recovery plan.
- Reviewing and testing this plan annually.
- Aggregated Data.
- Hyland owns all Customer and User registration and billing data collected and used by Hyland that is required for user set-up, use and billing for the Hyland Experience Service (“Account Information”) and all aggregated, anonymized and statistical data derived from the use and operation of the Hyland Experience Service, including without limitation, the number of records in the Hyland Experience Service, the number and types of transactions, configurations, and reports processed as part of the Hyland Experience Service and the performance results of the Hyland Experience Service (the “Aggregated Data”).
- Hyland may utilize the Account Information and Aggregated Data for purposes of operating Hyland’s business. For clarity, Account Information and Aggregated Data does not include Customer Data.
- Audit and Security Testing.
- Monitoring its compliance with its information security program. This includes periodic internal reviews. Results are shared with Hyland leadership and deviations tracked through to remediation.
- Maintaining a periodic external audit program. Completed attestations, such as available SOC 2 reports, are provided to Customer upon written request.
- Customer may conduct audits of Hyland’s operations that participate in the ongoing delivery and support of the Hyland Experience Service purchased by Customer on an annual basis; provided Customer provides Hyland written notice of its desire to conduct such audit and the following criteria are met: (a) Hyland and Customer mutually agree upon the timing, scope, and criteria of such audit, which may include the completion of questionnaires supplied by Customer and guided review of policies, practices, procedures, Hyland Experience Service configurations, invoices, or application logs, and (b) Customer agrees to pay Hyland fees (at Hyland’s standard rates) for the Professional Services that are required or requested of Hyland in connection with such audit. Prior to any such audit, any third party engaged by Customer to assist with such audit, must be cleared by Hyland and enter into a Non-Disclosure Agreement directly with Hyland. If any documentation requested by Customer cannot be removed from Hyland’s facilities as a result of physical limitations or policy restrictions, Hyland will allow Customer’s auditors access to such documentation at Hyland’s corporate headquarters in Ohio and may prohibit any type of copying or the taking of screen shots. Where necessary, Hyland will provide private and reasonable accommodation at Hyland’s corporate headquarters in Ohio for data analysis and meetings. Upon reasonable notice, Hyland and Customer mutually agree to make necessary employees or contractors available for interviews in person or on the phone during such audit at Customer’s cost and expense. Customer is prohibited from distributing or publishing the results of such audit to any third party without Hyland’s prior written approval.
- Customer may conduct penetration testing against the public URL used to access the Hyland Experience Service on an annual basis; provided Customer provides Hyland with written notice of its desire to conduct such testing and the following criteria are met: (a) Hyland and Customer mutually agree upon the timing, scope, and criteria of such testing, which may include common social engineering, application, and network testing techniques used to identify or exploit common vulnerabilities including buffer overflows, cross site scripting, SQL injection, and man in the middle attacks, and (b) such testing is at Customer’s cost and expense and Customer pays to Hyland fees (at Hyland’s standard rates) for the Professional Services that are required or requested of Hyland in connection with such testing. Prior to any such testing, any third party engaged by Customer to assist with such testing, must be cleared by Hyland and enter into a Non-Disclosure Agreement directly with Hyland. Customer acknowledges and agrees that any such testing performed without mutual agreement regarding timing, scope, and criteria may be considered a hostile attack, which may trigger automated and manual responses, including reporting the activity to local and federal law enforcement agencies as well as immediate suspension of Customer’s access to or use of the Hyland Experience Service. Customer is prohibited from distributing or publishing the results of such penetration testing to any third party without Hyland’s prior written approval.
Hyland Experience Service Levels
Effective April 19th 2024
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Hyland Experience Service Levels
Service Level Agreements (“SLA”) described in this document pertain to the availability of Hyland Experience. This document does not address Support Services.
Service Level Definitions
“Downtime” is calculated as the aggregate time (in minutes) each calendar month, as confirmed by Hyland following written notice from the Customer, that Hyland Experience is Unavailable (as defined below). The length of Downtime will be measured from the time an incident occurs, as confirmed by Hyland, until the time when Hyland confirms that the failure condition(s) reported are no longer present. Downtime does not include any failure conditions which occur due to an Exclusion Event (see below).
“Exclusion Event” means any of the following occurrences:
- System maintenance, whether such maintenance is scheduled (e.g., for upgrading of the Service or its components or for any other scheduled purpose) or unscheduled (due to emergency) which results in the Service being unavailable or inaccessible to Customer.
- Failure of a customer’s or user’s equipment or facilities.
- Acts or omissions of a customer or its user, including but not limited to (a) performance or non-performance of any services by a third party (other than Hyland) contracted by the customer to provide services to the customer or its users related to Hyland Experience, (b) any failure that is not due to fault of Hyland or Hyland’s contracted third-party service provider, (c) failure of any code or configurations managed or written by the customer or any third-party vendor to the customer, or (d) any unauthorized use or access by the customer or any of its users;
- The occurrence of a force majeure event.
- Internet failure or congestion.
- Failure of equipment or systems not within Hyland Experience, or of equipment or systems not provided, or not under the control or direction of Hyland including equipment or systems Hyland may obtain or contract for at the request of the customer; or
- Failures or other failures caused directly or indirectly by known or unknown computer viruses, worms or other malicious programs (assuming Hyland has not breached any of its obligations here or in the applicable agreement relating to virus protection protocols).
“Failover Notice” is a notification made by Hyland to the Customer (which may be made by electronic communication via e-mail or the Community portal) indicating that Hyland is initiating an AWS (Amazon Web Services) Region failover.
“Monthly Fees” is the portion of the recurring fees for Hyland Experience attributable to the month in which the applicable performance deficiency occurs, excluding any taxes, one-time fees, third party fees, travel or expense, professional services or similar additional fees. E.g., if fees are charged annually, the Monthly Fee equals the annual fees divided by 12, subject to the same exclusions above.
Monthly Uptime Percentage. is calculated as the total number of minutes in a calendar month, minus the number of minutes of Downtime (as defined above) in such month, divided by the total number of minutes in such month.
“Recovery Point” means the minimum number of hours (prior to the time Hyland provides a Failover Notice) that the customer’s data must have been stored within Hyland Experience to qualify as eligible data. Customer Data is deemed “eligible” if Hyland confirms it has been stored within the Hyland Cloud Service for a number of hours (prior to the time Hyland provides a Failover Notice) that exceeds the applicable Recovery Point Objective defined in Table 2 below.
“Recovery Time” means the number of hours from the time the required Failover Notice is delivered to the time Hyland Experience has been Restored (excluding any time during that period if/when an Exclusion Event affects both the current primary and secondary data centers).
“Restoration” occurs once access to Hyland Experience has been restored such that:
(1) eligible Customer Data can be retrieved; and
(2) new Customer Data can be input.
“Unavailability” or “Unavailable” refers to a state when Hyland Experience is either unresponsive or responds with an error, thereby preventing access. For clarification: if certain features or functions within Hyland Experience are unavailable while other features remain accessible, this will not be considered “Unavailability,” so long as the unavailable features or functions do not, when combined, significantly hinder the Customer’s use of Hyland Experience.
Service Level Commitments
Table 1: Monthly Uptime Percentages
STANDARD | |
Monthly Uptime Percentage | 99.5% |
Applicable Credit | 10% of the Monthly Fee |
Table 2: Business Continuity
STANDARD | |
Recovery Point Objective (RPO) | 24 Hours |
Applicable Credit | 25% of the Monthly Fee |
Recovery Time Objective (RTO) | 8 Hours |
Applicable Credit | 25% of the Monthly Fee |
Service Level Commitment Terms
Monthly Uptime Percentage. Hyland will meet the Monthly Uptime, as identified in Table 1 above, during each calendar month.
Business Continuity. Hyland shall provide business continuity redundancy via AWS Availability Zones. Hyland Experience does not use multiple AWS Regions. If Hyland delivers a Restoration Notice to Customer, Hyland shall restore Hyland Experience within the applicable Recovery Time Objective set forth in Table 2 above (except to the extent caused or prevented by an Exclusion Event).
Downtime Report. Following the occurrence of a Downtime event, upon request by the customer, Hyland shall provide a report which will include, as applicable, a detailed description of the incident, start and end times of the incident, duration of the incident, business/functional impact of the incident, description of remediation efforts taken, and a description of outstanding issues or tasks relating to the incident.
Exclusive Remedies Terms
Monthly Uptime Percentage. In the event the Monthly Uptime Percentage during any calendar month is less than the applicable Monthly Uptime Percentage set forth in the Table 1 above, the customer shall receive the applicable credit against the fees specified in Table 1 above, provided Customer submitted a technical support request within twenty-four hours of such Downtime.
Maximum Service Level Credit. Notwithstanding anything to the contrary, customers are only entitled to a maximum of one service level credit for all events occurring in a particular calendar month. If available, Customer shall be entitled to only the largest service level credit which may be payable for one or more of the service level failures occurring in such calendar month.
Application of Service Level Credits. Service level credits will be applied first to any outstanding amounts which are due and owing from Customer, and then to future fees.
Termination Remedy. If Customer earns a service level credit either: (a) in two consecutive calendar months, or (b) in three calendar months during any six consecutive month period; then the customer may, by written notice to Hyland delivered within thirty days after the last credit described in either clause or (a) or (b) above is earned, terminate the subscription to Hyland Experience.
Exclusivity. The remedies set forth above constitute the sole and exclusive remedies available to a customer for any failure to meet the service level commitments set forth in this document.
System Maintenance
For the purposes of the Service Level Commitment, Scheduled Maintenance is defined as:
Hyland Scheduled Maintenance Windows. Modifications or repairs to shared infrastructure or platform patching and upgrades that are expected to impact or potentially impact Hyland Experience availability is currently restricted to within the hours of 12 AM to 2 AM, based on the time zone of the impacted AWS Region. Hyland expects that scheduled system maintenance will not exceed 16 hours per month.
Hyland will notify Customer of scheduled system maintenance expected to impact system availability or functionality through the status page (currently, https://status.experience.hyland.com) or through direct communication. Customers must subscribe to the status page to receive notifications. Hyland will use reasonable efforts to notify Customer of unscheduled system maintenance that is expected to impact or potentially impact system availability or functionality. Such notifications will typically be sent at least 24 hours in advance, but to the extent Hyland determines that such maintenance is required sooner due to a security or availability concern (e.g., emergency maintenance is required by Hyland), Hyland will use reasonable efforts to send such notice no less than 2 hours prior to the specified start time.
Effective March 30th 2021 to April 19th 2024
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- System Maintenance (see “System Maintenance” below);
- failure of Customer’s equipment or facilities;
- acts or omissions of Customer, including but not limited to (a) performance or non-performance of any services by a third party (other than Hyland) contracted by Customer to provide services to Customer related to the Service, (b) any failure that Customer mutually agrees is not due to fault of Hyland or Hyland’s contracted third party service provider, or (c) failure of any code or configurations managed or written by Customer or any third party vendor to Customer;
- the occurrence of a force majeure event (as described in the Agreement);
- Internet failure or congestion;
- Use of the Service by Customer in violation of the Acceptable Use Policy; or Use of the Service by Customer after Hyland has advised Customer to modify its use of the Service, if Customer did not modify its use as advised;
- provided that Hyland has fulfilled its obligations under the Agreement, Service Unavailability or other failures caused directly or indirectly by known or unknown computer viruses, worms or other malicious programs;
- During beta or trial periods as reasonably determined by Hyland.
Service Classes | Silver |
Monthly Uptime Percentage | 99% |
Applicable Credit Determinations | Less than 99% 15% of the Monthly Fees for the Hyland Cloud Service for the calendar month in which the downtime began |
Data Processing Addendum - Brazil
Effective April 29th 2021
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- DEFINITIONS
- “Controller”, “Processor”, “Processing”, and “National Authority” have the same meanings as in Article 5 of the LGPD.
- “Data Subject” means the subject of Personal Data.
- “Hyland” means Hyland Software, Inc. on behalf of itself and its affiliates. The term affiliates shall be deemed to include any parent company, subsidiary, affiliate of, or entity controlled by (including beneficial control), controlling or under common control with Hyland Software, Inc.
- “Personal Data” means any information received by Service Provider from, or received or created on behalf of, Hyland relating to an identified or identifiable natural person located in Brazil. An “identifiable natural person” is one who can be identified, directly or indirectly, in particular, by reference to an identification number, location data, an online identifier or to one or more factors specific to the physical, psychological, genetic, mental, economic, cultural or social identity of the natural person.
- “Personal Data Breach” means breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed when that Personal Data is in the possession of Service Provider or its agents or subcontractors.
- “Required By Law” means that a statute, regulation, court order, or legal process, enforceable in a court of law, mandates the conduct.
- “Sensitive Personal Data” shall have the meaning given to it under Article 5 of the LGPD and also includes information about criminal history.
- “Sub-processor” means an entity that processes Personal Data at the request of Service Provider.
- SERVICE PROVIDER’S PROCESSING OF PERSONAL DATA
- Nature and Purpose of Processing of Personal Data. Service Provider agrees to Process Personal Data solely in accordance with Appendix A.
- Duration of Processing. Service Provider shall Process Personal Data only during the term of the Service Agreement.
- Violation Of Data Protection Law. Service Provider will immediately notify Hyland if Service Provider becomes aware that Service Provider’s compliance with a term or condition of this Addendum has violated, violates, or will violate Service Provider’s or Hyland’s obligations under applicable law.
- Disclosures of Personal Data. Service Provider may not disclose Personal Data to third parties unless the disclosure is (1) Required By Law, or (2) with the prior written consent of Hyland. Before disclosing Personal Data as Required By Law, Service Provider will immediately notify Hyland in writing of such required disclosure and will provide Hyland a reasonable opportunity to object to the request before Service Provider produces any Personal Data in response. Upon request, Service Provider will provide Hyland a copy of any Personal Data disclosed to a third party as Required by Law.
- Cross-Border Data Transfers. Service Provider will not transfer Personal Data outside of Brazil unless (1) Hyland has provided prior written permission for the transfer, and (2) in addition to the other requirements set forth in this Addendum, Service Provider ensures an adequate level of protection in accordance with the LGPD or the transfer falls under a derogation in accordance with the LGPD.
- SERVICE PROVIDER’S SAFEGUARDS FOR PERSONAL DATA
- Confidentiality Of Personal Data. Service Provider will maintain the confidentiality of all Personal Data. Service Provider has required employees responsible for Processing Personal Data to sign a confidentiality agreement prohibiting the disclosure of Personal Data Processed for Hyland to any third party except as permitted by this Addendum or as Required By Law.
- Physical, Technical And Organizational Safeguards. Service Provider shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures to protect against reasonably foreseeable risks to the security, confidentiality, integrity and resilience of Personal Data, which risks could result in the unauthorized disclosure, use, alteration, destruction or other compromise of the Personal Data, including a Personal Data Breach. Such program shall comply with the LGPD concerning the protection of Personal Data and shall include the measures set forth in the Services Agreement and such measures shall not be materially reduced during the Term of the Services Agreement. Service Provider will regularly monitor, test, and update its information security program. Service Provider shall also maintain in accordance with good industry practice, measures to protect Personal Data from interception such as: (i) network protections intended to deny attackers the ability to intercept or access Personal Data; and (ii) anonymization or other measures to deny attackers the ability to read intelligible Personal Data, including encryption in transit between Service Provider and any third party, as permitted by this Agreement. Service Provider will provide Hyland with such information concerning its information security program as Hyland may reasonably request from time to time.
- Reporting Personal Data Breaches. Service Provider shall report to Hyland any Personal Data Breach of which it becomes aware. Service Provider will make such report within 24 hours of Service Provider’s becoming aware of the incident and such report shall include, at a minimum subject to the availability of necessary information, the following: (1) a description of the incident; (2) the date that the incident occurred; (3) the date that Service Provider became aware of the incident; (4) the identity and last known mailing address of each affected Data Subject; (5) the approximate number of affected Personal Data records involved; (6) the affected categories of Personal Data, including Sensitive Personal Data, if any, for each affected Data Subject that was affected; (7) the approximate number of Data Subjects affected; (8) an identification of any law enforcement agency or National Authority that has been contacted about the incident and contact information for the relevant official; (9) a description of the steps that have been, or will be, taken to mitigate the incident; (10) a description of the steps that have been, or will be, taken to prevent a recurrence; (11) the likely consequences of the Personal Data Breach; and (12) contact information for the person at Service Provider principally responsible for responding to the Personal Data Breach.
- Service Provider will update the written report periodically as new information becomes available. All reports required by this provision shall be made to: Hyland Legal Department, Attn: Person In Charge, 28500 Clemens Rd. Westlake, Ohio 44145, 440-788-5000, brazilprivacy@hyland.com, or such other person that Hyland may designate from time to time in writing to Service Provider without amending this Addendum. Service Provider acknowledges that its determination that a particular set of circumstances constitutes a Personal Data Breach shall not be binding on Hyland.
- Mitigation Of Damages By Service Provider And Cooperation in Investigation. Service Provider agrees to take, at its own expense, measures reasonably necessary to mitigate any harmful effect of a Personal Data Breach. Service Provider agrees to cooperate, at its own expense, with Hyland in its investigation of any Personal Data Breach. Service Provider will reimburse Hyland for all imputed and out-of-pocket costs reasonably incurred by Hyland in connection with the Personal Data Breach, including, but not limited to, costs related to provision of notices to affected Data Subjects and to any services offered to affected Data Subjects.
- Notifications Related To A Personal Data Breach. Service Provider acknowledges that Hyland shall determine (1) whether and when to notify any National Authority and which National Authority to notify; (2) who will provide notice to Data Subjects with respect to any Personal Data Breach; (3) the content of any such notice(s); (4) the timing for, and method of, delivery of any such notice(s); and (5) the products or services, if any, to be offered to affected Data Subjects. Service Provider shall not disclose the fact that a Personal Data Breach has occurred, or any details related to a Personal Data Breach to any third party without Hyland’s written consent, unless otherwise Required By Law.
- SERVICE PROVIDER’S ASSISTANCE WITH AUDITS AND REQUESTS FROM DATA SUBJECTS
- Information Technology Audits. Service Provider will permit Hyland, directly or through a contractor, to conduct audits of the information technology and information security controls to ensure that: (i) Service Provider is in compliance with this Addendum; and (ii) Service Provider provides the appropriate level of security for the Personal Data.
- Requests For Impact Assessment Information. Service Provider shall promptly provide the information requested by Hyland to assist in conducting a data protection impact assessment pursuant to the LGPD.
- Requests Directed to Service Provider. Service Provider agrees to assist Hyland in responding to a request from a Data Subject to exercise any of his/her rights as provided for under the LGPD. In the event a Data Subject submits such a request with respect to the Data Subject’s Personal Data, Service Provider agrees to comply with the request within five (5) business days of receiving the request from Hyland. Service Provider will immediately provide Hyland with any requests concerning Personal Data that are sent directly to Service Provider from parties other than Hyland.
- SERVICE PROVIDER’S SUB-PROCESSORS
- Consent To Processing By Sub-Processors. Service Provider will not disclose Personal Data to any sub-processor without Hyland’s prior written consent. In the event that Hyland consents to Service Provider’s disclosure of Personal Data to a sub-processor, Service Provider shall remain responsible for, and remain liable to, Hyland for, the acts and omissions of such sub-processor as if they were Service Provider’s own acts and omissions.
- Sub-processors’ Physical, Technical And Administrative Safeguards: Service Provider shall obtain reasonable assurances, in writing, from any sub-processor to whom Service Provider discloses Personal Data. Such assurances shall include at least the following: that the sub-processor (1) will comply with substantially the same restrictions and conditions on Processing of Personal Data that this Addendum imposes on Service Provider, including the restrictions on cross-border data transfers; (2) will implement reasonable and appropriate physical, technical and organizational safeguards to protect Personal Data in compliance with the LGPD; and (3) will notify Service Provider within 24 hours of becoming aware of any Personal Data Breach involving Personal Data.
- SERVICE PROVIDER’S OBLIGATIONS UPON TERMINATION OF THE SERVICE AGREEMENT
- Return Or Destruction Of Personal Data. Upon Hyland's written instruction, Service Provider shall return or destroy Personal Data. If Hyland directs Service Provider to destroy the Personal Data, Service Provider shall do so in a manner reasonably intended to prevent recovery of the Personal Data and shall certify to the same in writing.
- Service Provider’s Retention Of Personal Data. If local law requires Service Provider to retain a copy of any Personal Data, then Service Provider shall (1) notify Hyland of such requirement, (2) extend the protections of this Addendum to the retained Personal Data and (3) limit further Processing of the retained Personal Data to those purposes Required By Law for as long as Service Provider maintains the Personal Data.
- Survival. Service Provider’s obligations and duties under this Addendum with respect to Personal Data shall survive the termination of the Service Agreement and of this Addendum and shall continue for as long as the Personal Data remains in the possession of Service Provider or of its sub-processors.
- MISCELLANEOUS TERMS
- Indemnification. Service Provider shall defend and indemnify Data Processor, its parent and subsidiary corporations, officers, directors, employees and agents for any and all claims, charges, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by Hyland and/or its parent or subsidiary corporations, officers, directors, employees and agents resulting from (1) any Processing of Personal Data not permitted by the Services Agreement including this Addendum, (2) any Personal Data Breach involving Personal Data in the possession, custody or control of Service Provider or its sub-processors, in the event such Personal Data Breach results in the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data.
- Indemnification Process. The foregoing indemnification obligations are conditioned upon Hyland: (1) notifying Service Provider promptly in writing of any claim, charge, inquiry, or investigation as described in Section 7.1 above; (2) reasonably cooperating and assisting in defense of such claim, charge, inquiry, or investigation; and (3) giving sole control of the defense and any related settlement negotiations to Service Provider with the understanding that Service Provider may not settle any claim in a manner that admits guilt or otherwise prejudices Hyland, without Hyland’s consent.
- Construction. This Addendum supersedes any inconsistent provisions in the Services Agreement and/or other existing agreements between the Hyland and Service Provider with respect to Service Provider’s obligation to safeguard Personal Data.
Subject Matter and During of the Processing | The subject matter of the Processing is Service Providers provision of Services under the Services Agreement. The duration of the Processing is the term of the Services Agreement, and any exit period, if applicable. |
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services as set forth in the Services Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Type of Personal Data Processed | The Personal Data transferred may concern the following categories of data subjects: Employees - Past, potential, present and future staff of Hyland (including job candidates, volunteers, agents, independent contractors, interns, temporary and casual workers). Vendors - Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Hyland and related staff. Website visitors – Individuals who visit any Hyland owned or operated website. Hyland Customers or End Users (collectively, “Customers”) – (a) Past, present and potential Customers of Hyland, and (b) data subjects whose Personal Data is uploaded or provided by Customers to Hyland during use of Hyland’s services or products. |
Categories of Personal Data Processed | The Personal Data transferred may concern the following categories: Employees Identification data: civil/marital status; first and last name; photograph; date and place of birth; nationality; corporate identifier; gender. Contact details: address; telephone number (fixed and mobile); email address; fax number; emergency contact information. Employment details: job title; company name; grade, occupation code; geographic location; employee performance and evaluation data; employee discipline information; information regarding previous roles and employment; employee benefits information such as election decisions, leave requests, authorization/declination, health insurance company. National identifiers: national ID/passport number; tax ID; government identification number; driver's license, visa or immigration status. Academic and professional qualifications: degrees; titles; skills; language proficiency; training information; employment history; CV/résumé. Financial data: bank account number; IBAN number; bank details including bank name, bank code, sort code; salary and compensation data; bonuses; pension qualification information; payroll data; tax class; tax office name. IT related data: computer ID; user ID and password; domain name; IP address; log files; software and hardware inventory; software usage pattern tracking information (i.e., cookies and information recorded for operation and training purposes). Lifestyle: hobbies; social activities; holiday preferences. Vendors Identification data: first and last name; date of birth; place of birth; nationality; photograph; vendor ID. Contact details: address; professional email address; professional telephone number (including mobile telephone number). Professional details: job title; employer; academic and professional qualifications; data related to transactions involving goods and services. National identifiers: tax ID; government identification number. Financial data: bank account number; bank details. Website visitors IT-related data: unique device identifiers, dynamic and static Internet Protocol addresses, as well as other information, such as browser characteristics, language preferences, operating system details, referring URLs, length of visits, and pages viewed. Customers, potential Customers and/or their staff, each as applicable Contact information (including name, physical address, e-mail and telephone numbers); Employer; Job title; Login credentials; Account profile, including interests and photograph; Applications for Hyland’s educational opportunities, including name, contact information, references, programming experience, and application essays; Dietary preferences and restrictions; Order information for trainings courses; Training records including courses taken, certifications completed, and scores and grades; Questions, feedback, comments and other postings, including through https://community.hyland.com; Other information the Customer chooses to provide; Information provided by third parties: data relating to the Customer, potential Customer or staff having clicked on a Hyland advertisement posted on a third party website; Information provided by third parties, where a Customer attends a Hyland event sponsored by a third party: including name, e-mail address, and phone number; Versions of Hyland Group company software used and how the software is being used (what functions, how often etc.); bank account number; bank details; credit card details; purchasing history; return history; cancellation history; and Personal Data submitted by a Customer in the course of the Customer's use of Hyland's Services or during the performance of Services under the Service Agreement. |
Categories of Sensitive Personal Data Processed | No collection of any sensitive data by a Service Provider is anticipated other than employee data required to provide Services in connection with valid employment purposes or to the extent required by applicable law. Such collection will only concern limited sensitive data, for example, health-related information for the purpose of managing employee absences, or disabilities in order to provide access to our premises. |
Data Processing Addendum - GDPR
Effective April 29th 2021
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- “Controller”, “Processor”, “Processing”, and “Supervisory Authority” have the same meanings as in Article 4 of the GDPR.
- “Data Subject” means the subject of Personal Data.
- "Data Protection Law" means: (i) EU Regulation 2016/679 (General Data Protection Regulation) (the "GDPR"); (ii) EU Directive 2002/58/EC (the "ePrivacy Directive"); (iii) after European Union law no longer applies in the United Kingdom, the data protection laws of the relevant territories of the United Kingdom; and (iv) any and all applicable national data protection laws made under or pursuant to (i), (ii) or (iii), in each case as may be amended or superseded from time to time.
- “EU Model Clauses” means standard contractual clauses adopted or approved by the European Commission for transfers under the GDPR (and if more than one set of such clauses may apply to a transfer, the most recent such set).
- “Hyland” means Hyland Software, Inc. on behalf of itself and its affiliates. The term affiliates shall be deemed to include any parent company, subsidiary, affiliate of, or entity controlled by (including beneficial control), controlling or under common control with Hyland.
- “Personal Data” means any information received by Service Provider from, or received or created on behalf of, Hyland relating to an identified or identifiable natural person located in the European Economic Area, the UK or Switzerland. An “identifiable natural person” is one who can be identified, directly or indirectly, in particular, by reference to an identification number, location data, an online identifier or to one or more factors specific to the physical, psychological, genetic, mental, economic, cultural or social identity of the natural person.
- “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed when that Personal Data is in the possession of Service Provider or its agents or subcontractors.
- “Required By Law” means that a statute, regulation, court order, or legal process, enforceable in a court of law, mandates the conduct.
- “Sensitive Personal Data” means Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning health, sex life, or sexual orientation, genetic data and biometric data when Processed for the purpose of uniquely identifying a natural person, and also includes information about criminal history.
- “Sub-processor” means an entity that processes Personal Data at the request of Service Provider.
- SERVICE PROVIDER’S PROCESSING OF PERSONAL DATA
- Nature and Purpose of Processing of Personal Data. Service Provider agrees to Process Personal Data solely in accordance with Appendix A.
- Duration of Processing. Service Provider shall Process Personal Data only during the term of the Services Agreement.
- Violation Of Data Protection Law. Service Provider will immediately notify Hyland if Service Provider becomes aware that Service Provider’s compliance with a term or condition of this DPA has violated, violates, or will violate Service Provider’s or Hyland’s obligations under applicable law.
- CROSS-BORDER DATA TRANSFERS
- Service Provider will not transfer Personal Data outside of the European Economic Area, which term shall include the United Kingdom (“EEA”) (but only for so long as transmission of personal data from the EEA to the United Kingdom is not considered as a transfer to a third country under European Union law), unless it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Law. Such measures may include (without limitation) transfers to any country or territory and/or sector that is at the time subject to a current finding by the European Commission of adequate protection, to a recipient that has achieved binding corporate rules authorization in accordance with Data Protection Law, or under any derogation permitted by Data Protection Law.
- To the extent that Service Provider transfers Personal Data outside the EEA in connection with the Services provided under the Services Agreement, and such transfer is not covered by any measure set forth in Section 3.1, the relevant transfer shall be governed by the appropriate EU Model Clauses, with the data importer being the Service Provider or other approved Sub-Processor and, as appropriate:
- the data exporter being Hyland and the governing law being that of where the applicable Hyland entity is established;
- the data exporter being the applicable Hyland customer and the governing law being that of where the applicable customer is located;
- Sections 3.1 and 3.2 shall apply equally to any transfers made from the United Kingdom to a recipient outside the United Kingdom in a territory and/or sector that has not been designated under Data Protection Laws as ensuring an adequate level of protection, with references in those clauses to EU Model Clauses being read as references to standard data protection clauses specified under Data Protection Laws as providing appropriate safeguards for transfers, and such clauses shall be deemed completed with the information stated in Sections 3.1 and 3.2 mutatis mutandis as appropriate.
- Where Personal Data originating in Switzerland is Processed by Service Provider (including a Sub-processor) outside Switzerland in a territory and sector that has not been designated as ensuring an adequate level of protection pursuant to Swiss laws Sections 3.1 and 3.2 shall apply mutatis mutandis but with the amendments stated in the Addendum hereto.
- SERVICE PROVIDER’S SAFEGUARDS FOR PERSONAL DATA
- Confidentiality Of Personal Data. Service Provider will maintain the confidentiality of all Personal Data. Service Provider will require employees responsible for Processing Personal Data to sign a confidentiality agreement prohibiting the disclosure of Personal Data to any third party except as permitted by this DPA or as Required By Law.
- Physical, Technical And Organizational Safeguards. Service Provider shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures to protect against reasonably foreseeable risks to the security, confidentiality, integrity and resilience of Personal Data, which risks could result in the unauthorized disclosure, use, alteration, destruction or other compromise of the Personal Data, including a Personal Data Breach. Such program shall comply with Article 32 of the GDPR and local laws concerning the protection of Personal Data and shall include the measures set forth in the Services Agreement and such measures shall not be materially reduced during the Term of the Services Agreement. Service Provider will regularly monitor, test, and update its information security program. Service Provider shall also maintain in accordance with good industry practice, measures to protect Personal Data from interception such as: (i) network protections intended to deny attackers the ability to intercept or access Personal Data; and (ii) anonymization or other measures to deny attackers the ability to read intelligible Personal Data, including encryption in transit between Service Provider and any third party, as permitted by this Agreement. Service Provider will provide Hyland with such information concerning its information security program as Hyland may reasonably request from time to time.
- Reporting Personal Data Breaches. Service Provider shall report to Hyland any Personal Data Breach of which it becomes aware. Service Provider will make such report orally to Hyland within 24 hours of Service Provider’s becoming aware of the incident followed by a report in writing (e-mail is acceptable) within 24 hours of the initial oral report. The written report shall include, at a minimum subject to the availability of necessary information, the following: (1) a description of the incident; (2) the date that the incident occurred; (3) the date that Service Provider became aware of the incident; (4) the identity and last known mailing address of each affected Data Subject; (5) the approximate number of affected Personal Data records involved; (6) the affected categories of Personal Data, including Sensitive Personal Data, if any, for each affected Data Subject that was affected; (7) the approximate number of Data Subjects affected; (8) an identification of any law enforcement agency or Supervisory Authority that has been contacted about the incident and contact information for the relevant official; (9) a description of the steps that have been, or will be, taken to mitigate the incident; (10) a description of the steps that have been, or will be, taken to prevent a recurrence; (11) the likely consequences of the Personal Data Breach; and (12) contact information for the person at Service Provider principally responsible for responding to the Personal Data Breach.
- Service Provider will update the written report periodically as new information becomes available. All reports required by this provision shall be made to: Hyland Legal Department, Attn: Privacy Officer, 28500 Clemens Rd. Westlake, Ohio 44145, 440-788-5000, privacy@hyland.com. Service Provider acknowledges that its determination that a particular set of circumstances constitutes a Personal Data Breach shall not be binding on Hyland.
- Mitigation Of Damages By Service Provider And Cooperation in Investigation. Service Provider agrees to take, at its own expense, measures reasonably necessary to mitigate any harmful effect of a Personal Data Breach. Service Provider agrees to cooperate, at its own expense, with Hyland in its investigation of any Personal Data Breach. Service Provider will reimburse Hyland for all imputed and out-of-pocket costs reasonably incurred by Hyland in connection with the Personal Data Breach, including, but not limited to, costs related to provision of notices to affected Data Subjects and to any services offered to affected Data Subjects.
- Notifications Related To A Personal Data Breach. Service Provider acknowledges that Hyland shall determine (1) whether and when to notify any Controller (if applicable) or Supervisory Authority and which Supervisory Authority to notify; (2) who will provide notice to Data Subjects with respect to any Personal Data Breach; (3) the content of any such notice(s); (4) the timing for, and method of, delivery of any such notice(s); and (5) the products or services, if any, to be offered to affected Data Subjects. Service Provider shall not disclose the fact that a Personal Data Breach has occurred or any details related to a Personal Data Breach to any third party without Hyland’s written consent, unless otherwise Required By Law.
- Third Party Access Requests. In the event Service Provider receives a non-compulsory request from any third party, including without limitation, any law enforcement, regulatory, judicial or governmental authority, for disclosure of or access to Personal Data, Service Provider will not disclose or provide such access unless instructed to do so by Hyland. In the event Service Provider receives a compulsory order issued at the request of any third party, including without limitation any law enforcement, regulatory, judicial or governmental authority for disclosure of or access to Personal Data, Service Provider will prior to any disclosure or provision of access:
- promptly notify Hyland of such order, unless prohibited by law, and, if so prohibited from notifying Hyland, seek to obtain the right to waive such prohibition in favor of promptly communicating to Hyland as much information as possible; and
- inform the third party that: (i) Service Provider is a Processor of such transferred Personal Data and that Hyland has not authorised the disclosure of Personal Data to the third party; and (ii) any and all requests or demands for disclosure of or access to such transferred Personal Data should therefore be notified to or served upon Hyland; and
- Only disclose such transferred Personal Data to the extent Service Provider is legally required to do so in accordance with an applicable lawful process, and prior to any such transfer, use reasonable efforts to challenge the scope or validity of any order that Service Provider reasonably believes to be overly broad.
- Service Provider will maintain, in accordance with good industry practice, measures to protect Personal Data from interception such as: (a) network safeguards intended to deny attackers the ability to access Personal Data; and (b) other measures to deny attackers the ability to read intelligible Personal Data, including encryption in transit between Service Provider to Hyland and from Service Provider to any Sub-Processor.
- SERVICE PROVIDER’S ASSISTANCE WITH AUDITS AND DATA SUBJECT REQUESTS
- Availability Of Records Of Processing. Service Provider shall promptly, after a reasonable request from Hyland, make available to Hyland all information necessary to demonstrate the Controller’s compliance with the obligations established by Article 28 of the GDPR.
- Information Technology Audits. Service Provider will permit Hyland, directly or through a contractor, to conduct site audits of the information technology and information security controls for all facilities used to Process Personal Data so that Hyland can ensure that Service Provider provides the appropriate level of security for the Personal Data.
- Requests For Impact Assessment Information. Service Provider shall promptly provide the information requested by Hyland to assist in conducting a data protection impact assessment pursuant to Articles 35 and 36 of the GDPR.
- Requests Directed to Service Provider. Service Provider agrees to assist Hyland in responding to a request from a Data Subject to exercise any of his/her rights as provided for under the GDPR. In the event a Data Subject submits such a request with respect to the Data Subject’s Personal Data, Service Provider agrees to comply with the request within 5 business days of receiving the request from Hyland. Service Provider will immediately provide Hyland with any requests concerning Personal Data that are sent directly to Service Provider from parties other than Hyland.
- SERVICE PROVIDER’S SUB-PROCESSORS
- Consent To Processing By Sub-Processors. Service Provider will not disclose Personal Data to any third party without Hyland’s prior written consent. In the event that Hyland consents to Service Provider’s disclosure of Personal Data to a Sub-processor, Service Provider shall remain responsible for, and remain liable to, Hyland for, the acts and omissions of such Sub-processor as if they were Service Provider’s own acts and omissions.
- Sub-processors’ Physical, Technical And Administrative Safeguards. Service Provider shall obtain reasonable assurances, in writing, from any Sub-processor to whom Service Provider discloses Personal Data. Such assurances shall include at least the following: that the sub-processor (1) will comply with substantially the same restrictions and conditions on Processing of Personal Data that this DPA imposes on Service Provider, including the restrictions on cross-border data transfers; (2) will implement reasonable and appropriate physical, technical and organizational safeguards to protect Personal Data in compliance with Article 32 of the GDPR; and (3) will notify Service Provider within 24 hours of becoming aware of any Personal Data Breach involving Personal Data.
- SERVICE PROVIDER’S OBLIGATIONS UPON TERMINATION OF THE SERVICE AGREEMENT
- Return Or Destruction Of Personal Data. Upon Hyland's written instruction, Service Provider shall return or destroy Personal Data. If Hyland directs Service Provider to destroy the Personal Data, Service Provider shall do so in a manner reasonably intended to prevent recovery of the Personal Data and shall certify to the same in writing.
- Service Provider’s Retention Of Personal Data. If local law requires Service Provider to retain a copy of any Personal Data, then Service Provider shall (1) notify Hyland of such requirement, (2) extend the protections of this DPA to the retained Personal Data and (3) limit further Processing of the retained Personal Data to those purposes Required By Law for as long as Service Provider maintains the Personal Data.
- Survival. Service Provider’s obligations and duties under this DPA with respect to Personal Data shall survive the termination of the Services Agreement and of this DPA and shall continue for as long as the Personal Data remains in the possession of Service Provider or of its Sub-processors.
- MISCELLANEOUS TERMS
- Indemnification. Service Provider shall defend and indemnify Hyland, its parent and subsidiary corporations, officers, directors, employees and agents for any and all claims, charges, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by Hyland and/or its parent or subsidiary corporations, officers, directors, employees and agents resulting from (1) any Processing of Personal Data not permitted by the Services Agreement and this DPA, (2) any Personal Data Breach involving Personal Data in the possession, custody or control of Service Provider or its sub-processors, in the event such Personal Data Breach results in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
- Indemnification Process. The foregoing indemnification obligations are conditioned upon Hyland: (1) notifying Service Provider promptly in writing of any claim, charge, inquiry, or investigation as described in Section VII.A above; (2) reasonably cooperating and assisting in defense of such claim, charge, inquiry, or investigation; and (3) giving sole control of the defense and any related settlement negotiations to Service Provider with the understanding that Service Provider may not settle any claim in a manner that admits guilt or otherwise prejudices Hyland, without Hyland’s consent.
- Construction. This DPA supersedes any inconsistent provisions in the Services Agreement and/or other existing agreements between the Hyland and Service Provider with respect to Service Provider’s obligation to safeguard Personal Data.
Subject Matter and During of the Processing | The subject matter of the Processing is Service Providers provision of Services under the Services Agreement. The duration of the Processing is the term of the Services Agreement, and any exit period, if applicable. |
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services as set forth in the Services Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Type of Personal Data Processed | The Personal Data transferred may concern the following categories of data subjects: Employees - Past, potential, present and future staff of Hyland (including job candidates, volunteers, agents, independent contractors, interns, temporary and casual workers). Vendors - Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Hyland and related staff. Website visitors – Individuals who visit any Hyland owned or operated website. Hyland Customers or End Users (collectively, “Customers”) – (a) Past, present and potential Customers of Hyland, and (b) data subjects whose Personal Data is uploaded or provided by Customers to Hyland during use of Hyland’s services or products. |
Categories of Personal Data Processed | The Personal Data transferred may concern the following categories: Employees Identification data: civil/marital status; first and last name; photograph; date and place of birth; nationality; corporate identifier; gender. Contact details: address; telephone number (fixed and mobile); email address; fax number; emergency contact information. Employment details: job title; company name; grade, occupation code; geographic location; employee performance and evaluation data; employee discipline information; information regarding previous roles and employment; employee benefits information such as election decisions, leave requests, authorization/declination, health insurance company. National identifiers: national ID/passport number; tax ID; government identification number; driver's license, visa or immigration status. Academic and professional qualifications: degrees; titles; skills; language proficiency; training information; employment history; CV/résumé. Financial data: bank account number; IBAN number; bank details including bank name, bank code, sort code; salary and compensation data; bonuses; pension qualification information; payroll data; tax class; tax office name. IT related data: computer ID; user ID and password; domain name; IP address; log files; software and hardware inventory; software usage pattern tracking information (i.e., cookies and information recorded for operation and training purposes). Lifestyle: hobbies; social activities; holiday preferences. Vendors Identification data: first and last name; date of birth; place of birth; nationality; photograph; vendor ID. Contact details: address; professional email address; professional telephone number (including mobile telephone number). Professional details: job title; employer; academic and professional qualifications; data related to transactions involving goods and services. National identifiers: tax ID; government identification number. Financial data: bank account number; bank details. Website visitors IT-related data: unique device identifiers, dynamic and static Internet Protocol addresses, as well as other information, such as browser characteristics, language preferences, operating system details, referring URLs, length of visits, and pages viewed. Customers, potential Customers and/or their staff, each as applicable Contact information (including name, physical address, e-mail and telephone numbers); Employer; Job title; Login credentials; Account profile, including interests and photograph; Applications for Hyland’s educational opportunities, including name, contact information, references, programming experience, and application essays; Dietary preferences and restrictions; Order information for trainings courses; Training records including courses taken, certifications completed, and scores and grades; Questions, feedback, comments and other postings, including through https://community.hyland.com; Other information the Customer chooses to provide; Information provided by third parties: data relating to the Customer, potential Customer or staff having clicked on a Hyland advertisement posted on a third party website; Information provided by third parties, where a Customer attends a Hyland event sponsored by a third party: including name, e-mail address, and phone number; Versions of Hyland Group company software used and how the software is being used (what functions, how often etc.); bank account number; bank details; credit card details; purchasing history; return history; cancellation history; and Personal Data submitted by a Customer in the course of the Customer's use of Hyland's Services or during the performance of Services under the Service Agreement. |
Categories of Sensitive Personal Data Processed | No collection of any sensitive data by a Service Provider is anticipated other than employee data required to provide Services in connection with valid employment purposes or to the extent required by applicable law. Such collection will only concern limited sensitive data, for example, health-related information for the purpose of managing employee absences, or disabilities in order to provide access to our premises. |
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant Authorities of the country where the data exporter is established) and does not violate the relevant provisions of that country.
Hyland Anti-Bribery/Anti-Corruption Policy and Guide - English
Hyland Anti-Bribery and Anti-Corruption Policy and Guide - Portuguese
Hyland Anti-Bribery and Anti-Corruption Policy and Guide - Spanish
Hyland Anti-Bribery and Anti-Corruption Policy and Guide - German
HIPAA Subcontractor Addendum
Effective April 30th 2021
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- Except as provided in paragraph (b) of this Section 14, upon termination of the Services Agreement or this Addendum for any reason, Service Provider shall return or destroy all PHI received from Hyland or a Covered Entity, or created or received by Service Provider on behalf of Hyland or a Covered Entity, and shall retain no copies of the PHI. Service Provider will certify that such return or destruction has been completed no later than thirty (30) calendar days following the effective date of termination.
- If it is infeasible for Service Provider to return or destroy the PHI upon termination of the Services Agreement or this Addendum, Service Provider shall: (i) extend the protections of this Addendum to such PHI; and (ii) limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Service Provider maintains such PHI.
- Notwithstanding the foregoing, at any time during the term of this Addendum, upon request by Hyland, Service Provider will return or destroy all PHI relating to a particular Covered Entity. Service Provider will certify that such return or destruction has been completed no later than thirty (30) calendar days following Hyland’s request.
Hyland Purchase Order Terms and Conditions
Effective June 6th 2024
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(ii) as applicable, process such Personal Information pursuant to the following: (i) only process such personal information for the limited purpose of performing its obligations under this Agreement, as may be amended; (ii) not sell (as defined in the CCPA) such Personal Information, and
Effective May 4th 2021 to June 6th 2024
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(ii) as applicable, process such Personal Information pursuant to the following: (i) only process such personal information for the limited purpose of performing its obligations under this Agreement, as may be amended; (ii) not sell (as defined in the CCPA) such Personal Information, and
Hyland Poland Sp. zoo Purchase Order Terms and Conditions
Effective June 6th 2024
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HYLAND POLAND SP. Z O.O.
PURCHASE ORDER TERMS AND CONDITIONS
1. Scope and Acceptance. This purchase order (“P.O.”) is a complete and binding agreement between Hyland Poland Sp. z o.o. (“Hyland”) and the supplier identified by Hyland on the face of this P.O. (“Supplier”). This P.O. covers Hyland’s purchase of: (a) software licenses, tangible goods or deliverables in the nature of intellectual property or work products developed specifically for Hyland by Supplier or any subcontractor of Supplier in the performance of services to Hyland (“Goods”); or (b) services (“Services”). This P.O. is effective upon the first to occur of Supplier’s commencement of fulfillment or acceptance in accordance with the terms of an applicable agreement described in Section 2 below.
(b) any and all claims, compensations, inquiries or investigations incurred by an Indemnitee resulting from (1) any use or disclosure or any other processing of Personal Data not permitted by this P.O., (2) any Security Incident involving any Personal Data in the possession, custody or processing of Supplier or its subcontractors or agents; or
(c) any breach of confidentiality obligations under Section 11; or
(d) any failure to comply with applicable laws, rules or regulations by Supplier or its agents, employees or subcontractors.
Revised: 4-22-20
Effective May 5th 2021 to June 6th 2024
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HYLAND POLAND SP. Z O.O.
PURCHASE ORDER TERMS AND CONDITIONS
1. Scope and Acceptance. This purchase order (“P.O.”) is a complete and binding agreement between Hyland Poland Sp. z o.o. (“Hyland”) and the supplier identified by Hyland on the face of this P.O. (“Supplier”). This P.O. covers Hyland’s purchase of: (a) software licenses, tangible goods or deliverables in the nature of intellectual property or work products developed specifically for Hyland by Supplier or any subcontractor of Supplier in the performance of services to Hyland (“Goods”); or (b) services (“Services”). This P.O. is effective upon the first to occur of Supplier’s commencement of fulfillment or acceptance in accordance with the terms of an applicable agreement described in Section 2 below.
(b) any and all claims, compensations, inquiries or investigations incurred by an Indemnitee resulting from (1) any use or disclosure or any other processing of Personal Data not permitted by this P.O., (2) any Security Incident involving any Personal Data in the possession, custody or processing of Supplier or its subcontractors or agents; or
(c) any breach of confidentiality obligations under Section 11; or
(d) any failure to comply with applicable laws, rules or regulations by Supplier or its agents, employees or subcontractors.
Revised: 4-22-20
Effective May 5th 2021 to May 5th 2021
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HYLAND POLAND SP. Z O.O.
PURCHASE ORDER TERMS AND CONDITIONS
1. Scope and Acceptance. This purchase order (“P.O.”) is a complete and binding agreement between Hyland Poland Sp. z o.o. (“Hyland”) and the supplier identified by Hyland on the face of this P.O. (“Supplier”). This P.O. covers Hyland’s purchase of: (a) software licenses, tangible goods or deliverables in the nature of intellectual property or work products developed specifically for Hyland by Supplier or any subcontractor of Supplier in the performance of services to Hyland (“Goods”); or (b) services (“Services”). This P.O. is effective upon the first to occur of Supplier’s commencement of fulfillment or acceptance in accordance with the terms of an applicable agreement described in Section 2 below.
(b) any and all claims, compensations, inquiries or investigations incurred by an Indemnitee resulting from (1) any use or disclosure or any other processing of Personal Data not permitted by this P.O., (2) any Security Incident involving any Personal Data in the possession, custody or processing of Supplier or its subcontractors or agents; or
(c) any breach of confidentiality obligations under Section 11; or
(d) any failure to comply with applicable laws, rules or regulations by Supplier or its agents, employees or subcontractors.
Revised: 4-22-20
Software-as-a-Service Schedule
Effective June 29th 2024
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SOFTWARE-AS-A-SERVICE SCHEDULE
This Software-As-A-Service Schedule (this “SaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this SaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this SaaS Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this SaaS Schedule shall have the meaning ascribed them in this SaaS Schedule or, if not defined in this SaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this SaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (b) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service, through which the Customer will access the Software and Customer Data stored using the Software.
“Hyland Cloud Service Support” means the services described in this SaaS Schedule.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Order Form.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the applicable service level commitment purchase by Customer, as described in the Service Class Manual.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland, currently https://legal.hyland.com/#service-class-manual.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to the Agreement, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or as otherwise permitted by Customer.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of the Agreement. The initial Service Class purchased by Customer is set forth in the initial Order Form. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of the Agreement. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of the Agreement. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Customer Data Extraction. In connection with any termination or expiration of the Agreement for any reason, Hyland will send a notice to Customer (which notice may be by email to the last known Customer contact) (the “Data Extraction Notice”), advising Customer that the Customer Data will remain accessible for a period of thirty (30) days after the date of such Data Extraction Notice, during which period Customer may extract such Customer Data. If Customer desires assistance with Customer Data extraction, Hyland may provide such services subject to the execution of a mutually agreed upon Services Proposal. Customer acknowledges and agrees that thirty (30) days after the date of such Data Extraction Notice, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software, these SaaS terms do not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as otherwise expressly provided herein), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by the Agreement. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with the Agreement and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Hyland Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Hyland Cloud Services in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 Hyland Cloud Service Support Terms. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(i) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(ii) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (A) will respond based on the confirmed severity level; (B) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (C) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of the Agreement.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer’s responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland’s Cloud Software Version Policy available at Hyland’s end user website (currently, community.hyland.com); Customer’s failure to comply with Hyland’s Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 Exclusions. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY. During the term of the Agreement, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of the Agreement the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Agreement, Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any).
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the Agreement upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted herein; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER CONTRACT (INCLUDING WITHOUT LIMITATION A BUSINESS ASSOCIATE AGREEMENT OR DATA PROCESSING AGREEMENT), IN THE CASE OF AN UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER DATA FOR WHICH A CLAIM AGAINST HYLAND (OR ANY OF ITS AFFILIATES OR SUPPLIERS) ARISES (A "CUSTOMER DATA INCIDENT"), THE FOLLOWING LIMITATIONS SHALL APPLY:
(A) THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT; AND
(B) NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITY THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES, LOSSES, EXPENSES OR COSTS.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Subject to Section 10.1(A) of this Schedule, in the event of a Customer Data Incident for which Hyland is liable, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including SaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this SaaS Schedule available in other languages at this online location. This English language version of this SaaS Schedule controls over any version of the SaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this SaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the SaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
- The SaaS Fees Section of this SaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the SaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for SaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this SaaS Schedule is excluded.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER CONTRACT (INCLUDING WITHOUT LIMITATION A BUSINESS ASSOCIATE AGREEMENT OR DATA PROCESSING AGREEMENT), IN THE CASE OF AN UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER DATA FOR WHICH A CLAIM AGAINST HYLAND (OR ANY OF ITS AFFILIATES OR SUPPLIERS) ARISES (A “CUSTOMER DATA INCIDENT"), THE FOLLOWING LIMITATIONS SHALL APPLY (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE):
(A) THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective May 3rd 2024 to June 29th 2024
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
This Software-As-A-Service Schedule (this “SaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this SaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this SaaS Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this SaaS Schedule shall have the meaning ascribed them in this SaaS Schedule or, if not defined in this SaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this SaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (b) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service, through which the Customer will access the Software and Customer Data stored using the Software.
“Hyland Cloud Service Support” means the services described in this SaaS Schedule.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Order Form.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the applicable service level commitment purchase by Customer, as described in the Service Class Manual.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland, currently https://legal.hyland.com/#service-class-manual.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to the Agreement, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or as otherwise permitted by Customer.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of the Agreement. The initial Service Class purchased by Customer is set forth in the initial Order Form. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of the Agreement. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of the Agreement. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Customer Data Extraction. In connection with any termination or expiration of the Agreement for any reason, Hyland will send a notice to Customer (which notice may be by email to the last known Customer contact) (the “Data Extraction Notice”), advising Customer that the Customer Data will remain accessible for a period of thirty (30) days after the date of such Data Extraction Notice, during which period Customer may extract such Customer Data. If Customer desires assistance with Customer Data extraction, Hyland may provide such services subject to the execution of a mutually agreed upon Services Proposal. Customer acknowledges and agrees that thirty (30) days after the date of such Data Extraction Notice, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software, these SaaS terms do not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as otherwise expressly provided herein), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by the Agreement. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with the Agreement and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Hyland Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Hyland Cloud Services in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 Hyland Cloud Service Support Terms. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(i) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(ii) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (A) will respond based on the confirmed severity level; (B) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (C) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of the Agreement.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer’s responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland’s Cloud Software Version Policy available at Hyland’s end user website (currently, community.hyland.com); Customer’s failure to comply with Hyland’s Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 Exclusions. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY. During the term of the Agreement, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of the Agreement the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Agreement, Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any).
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the Agreement upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted herein; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIABILITY CAP IN SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including SaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this SaaS Schedule available in other languages at this online location. This English language version of this SaaS Schedule controls over any version of the SaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this SaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the SaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
- The SaaS Fees Section of this SaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the SaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for SaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this SaaS Schedule is excluded.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective February 13th 2024 to May 3rd 2024
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
This Software-As-A-Service Schedule (this “SaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this SaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this SaaS Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this SaaS Schedule shall have the meaning ascribed them in this SaaS Schedule or, if not defined in this SaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this SaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (b) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service, through which the Customer will access the Software and Customer Data stored using the Software.
“Hyland Cloud Service Support” means the services described in this SaaS Schedule.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Order Form.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the applicable service level commitment purchase by Customer, as described in the Service Class Manual.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to the Agreement, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or as otherwise permitted by Customer.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of the Agreement. The initial Service Class purchased by Customer is set forth in the initial Order Form. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of the Agreement. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of the Agreement. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Customer Data Extraction. In connection with any termination or expiration of the Agreement for any reason, Hyland will send a notice to Customer (which notice may be by email to the last known Customer contact) (the “Data Extraction Notice”), advising Customer that the Customer Data will remain accessible for a period of thirty (30) days after the date of such Data Extraction Notice, during which period Customer may extract such Customer Data. If Customer desires assistance with Customer Data extraction, Hyland may provide such services subject to the execution of a mutually agreed upon Services Proposal. Customer acknowledges and agrees that thirty (30) days after the date of such Data Extraction Notice, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software, these SaaS terms do not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as otherwise expressly provided herein), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by the Agreement. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with the Agreement and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Hyland Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Hyland Cloud Services in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 Hyland Cloud Service Support Terms. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(i) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(ii) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (A) will respond based on the confirmed severity level; (B) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (C) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of the Agreement.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer’s responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland’s Cloud Software Version Policy available at Hyland’s end user website (currently, community.hyland.com); Customer’s failure to comply with Hyland’s Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 Exclusions. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY. During the term of the Agreement, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of the Agreement the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Agreement, Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any).
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the Agreement upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted herein; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIABILITY CAP IN SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including SaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this SaaS Schedule available in other languages at this online location. This English language version of this SaaS Schedule controls over any version of the SaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this SaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the SaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
- The SaaS Fees Section of this SaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the SaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for SaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this SaaS Schedule is excluded.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective October 4th 2023 to February 13th 2024
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
This Software-As-A-Service Schedule (this “SaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this SaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this SaaS Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this SaaS Schedule shall have the meaning ascribed them in this SaaS Schedule or, if not defined in this SaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this SaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (b) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service, through which the Customer will access the Software and Customer Data stored using the Software.
“Hyland Cloud Service Support” means the services described in this SaaS Schedule.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer.
“Initial Term” means, unless otherwise defined in the General Terms Schedule, and as used in this SaaS Schedule, (a) the initial term for which Customer has purchased products or services governed by this SaaS Schedule as set forth on the Incorporating Document for such product or service; or (b) if an initial term is not set forth as described in (a), the three (3) year period that begins on the date of Hyland’s acceptance of the applicable purchase order.
“Order Form” means, unless otherwise defined in the General Terms Schedule, and as used in this SaaS Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Order Form.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the applicable service level commitment purchase by Customer, as described in the Service Class Manual.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to the Agreement, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of the Agreement. The initial Service Class purchased by Customer is set forth in the initial Order Form. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of the Agreement. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of the Agreement. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Return of Customer Data and Deletion. In connection with any termination or expiration of the Agreement for any reason, Hyland will send a notice to Customer (which notice may be by email to the last known Customer contact) (the “Data Extraction Notice”), advising Customer that the Customer Data will remain accessible for a period of thirty (30) days after the date of such Data Extraction Notice, during which period Customer may extract such Customer Data. If Customer desires assistance with Customer Data extraction, Hyland may provide such services subject to the execution of a mutually agreed upon Services Proposal. Customer acknowledges and agrees that thirty (30) days after the date of such Data Extraction Notice, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software from Hyland, this Agreement or Schedule (as the case may be) does not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as otherwise expressly provided herein), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by the Agreement or SaaS Schedule (as the case may be). Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with the Agreement or SaaS Schedule (as the case may be) and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Cloud Services in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this SaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 Hyland Cloud Service Support Terms. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment attached hereto.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(i) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(ii) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (A) will respond based on the confirmed severity level; (B) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (C) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this SaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer’s responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland’s Cloud Software Version Policy available at Hyland’s end user website (currently, community.hyland.com); Customer’s failure to comply with Hyland’s Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 Exclusions. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (a) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (b) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (c) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (d) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (e) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY. During the term of the Agreement or this SaaS Schedule (as the case may be), Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with this SaaS Schedule and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under this SaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of the Agreement the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (a) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (c) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Agreement, Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any).
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted herein; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIABILITY CAP IN SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including SaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions set forth above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this SaaS Schedule.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this SaaS Schedule available in other languages at this online location. This English language version of this SaaS Schedule controls over any version of the SaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this SaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the SaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
- The SaaS Fees Section of this SaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the SaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for SaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this SaaS Schedule is excluded.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 2nd 2023 to October 4th 2023
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Software-As-A-Service Schedule (this “SaaS Schedule”) is part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this SaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this SaaS Schedule.
DEFINED TERMS
All capitalized terms used in this SaaS Schedule shall have the meaning ascribed them in this SaaS Schedule or, if not defined in this SaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this SaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (b) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service, through which the Customer will access the Software and Customer Data stored using the Software.
“Hyland Cloud Service Support” means the services described in this SaaS Schedule.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Platform and the Host Web Site for use applicable to each Software module purchase under the Agreement.
“Initial Term” means, unless otherwise defined in the General Terms Schedule, and as used in this SaaS Schedule, (a) the initial term for which Customer has purchased products or services governed by this SaaS Schedule as set forth on the applicable Cover Page, Purchase Table Schedule, or Incorporating Document for such product or service; or (b) if an initial term is not set forth as described in (a), the three (3) year period that begins on the date of Hyland’s acceptance of the applicable purchase order.
“Order Form” means, unless otherwise defined in the General Terms Schedule, and as used in this SaaS Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Order Form.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the applicable service level commitment purchase by Customer, as described in the Service Class Manual.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means Customer’s employees that access and use the Hyland Cloud Service.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this SaaS Schedule Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to this SaaS Schedule, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of this Agreement. The initial Service Class purchased by Customer is set forth in the initial Order Form. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of this Agreement. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of this Agreement. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Return of Customer Data and Deletion. In connection with any termination or expiration of this SaaS Schedule for any reason, Hyland will send a notice to Customer (which notice may be by email to the last known Customer contact) (the “Data Extraction Notice”), advising Customer that the Customer Data will remain accessible for a period of thirty (30) days after the date of such Data Extraction Notice, during which period Customer may extract such Customer Data. If Customer desires assistance with Customer Data extraction, Hyland may provide such services subject to the execution of a mutually agreed upon Services Proposal. Customer acknowledges and agrees that thirty (30) days after the date of such Data Extraction Notice, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software from Hyland, this Agreement or Schedule (as the case may be) does not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of this Agreement or SaaS Schedule (as the case may be), Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as otherwise expressly provided herein), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by this Agreement or SaaS Schedule (as the case may be). Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with this Agreement or SaaS Schedule (as the case may be) and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Cloud Services in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this SaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice for Initial Setup Fees upon Hyland's acceptance of the applicable initial order and subsequent orders for each purchase of Software for the Hyland Cloud Service, and such invoice shall be due and payable to Hyland in accordance with this Agreement.
3.2 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.5 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 Hyland Cloud Service Support Terms. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment attached hereto.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(i) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(ii) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (A) will respond based on the confirmed severity level; (B) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (C) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this SaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer’s responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland’s Cloud Software Version Policy available at Hyland’s end user website (currently, community.hyland.com); Customer’s failure to comply with Hyland’s Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 Exclusions. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (a) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (b) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (c) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (d) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (e) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY. During the term of this Agreement or this SaaS Schedule (as the case may be), Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this SaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this SaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with this SaaS Schedule and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under this SaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under this Agreement or this SaaS Schedule (as the case may be) for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of this Agreement or this SaaS Schedule (as the case may be) the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (a) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (c) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Agreement or this SaaS Schedule (as the case may be) with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this Agreement or this SaaS Schedule (as the case may be), Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services (if any).
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this Agreement or this SaaS Schedule (as the case may be) upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted herein; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term.Subject to the termination provisions set forth in termination for breach section of the General Terms Schedule, the initial term of this Schedule will be the Initial Term; and such term will automatically renew thereafter for successive Renewal Terms, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case the Agreement shall terminate at the end of the then current term. “Renewal Terms” shall be a period of one (1) year each unless a renewal Order Form defines a different Renewal Term for the applicable renewal period. The Schedule will not terminate unless and until all Software subscriptions purchased have terminated or expired.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of the Agreement will be in violation of any law or regulation implemented or modified after the Effective Date, Customer or Hyland, as the case may be, may terminate the applicable license or services under the Agreement, upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to the obligations set forth in the General Terms Schedule, immediately upon any termination or expiration of this SaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this SaaS Schedule or the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service pursuant to the terms of this SaaS Schedule and the Agreement for a period following the expiration or termination of the SaaS Schedule (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including SaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions set forth above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this SaaS Schedule.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Brasil LTDA. Exhibit A
Hyland Software Germany GmbH Exhibit B
14. CONTROLLING LANGUAGE. Hyland may make other versions of this SaaS Schedule available in other languages at this online location. This English language version of this SaaS Schedule controls over any version of the SaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this SaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the SaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
- The SaaS Fees Section of this SaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the SaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for SaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this SaaS Schedule is excluded.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective February 24th 2023 to June 2nd 2023
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
This SaaS Schedule (“SaaS Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Purchase Table Schedule for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (2) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer in accordance with the Agreement and this SaaS Schedule.
“Hyland Cloud Service Support” means the services described in Section 5 of this Schedule.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Platform and the Host Web Site for use applicable to each Software module purchase under the Agreement.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Purchase Table Schedule.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the service level commitment included as part of the Hyland Cloud Service, as described in the Service Class Manual, and purchased by Customer as part of the Hyland Cloud Service.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during the term of this Schedule to correct errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means Customer’s employees that access and use the Hyland Cloud Service.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this SaaS Schedule Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to this SaaS Schedule, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of this SaaS Schedule. The initial Service Class purchased by Customer is set forth in the initial Purchase Table Schedule. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of this SaaS Schedule. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of this SaaS Schedule. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Customer Data Extraction and Deletion. In connection with any termination or expiration of this SaaS Schedule for any reason, Hyland will send a notice to Customer (which notice may be by email to the last known Customer contact) (the “Data Extraction Notice”), advising Customer that the Customer Data will remain accessible for a period of thirty (30) days after the date of such Data Extraction Notice, during which period Customer may extract such Customer Data. If Customer desires assistance with Customer Data extraction, Hyland may provide such services subject to the execution of a mutually agreed upon Services Proposal. Customer acknowledges and agrees that thirty (30) days after the date of such Data Extraction Notice, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Data Location. Hyland shall store Customer Data at data centers located in the country(ies) indicated in the initial Purchase Table. Hyland may, at its expense, change the location of the Customer Data to other data centers; provided that such locations remain in that country.
1.5 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software from Hyland, this Schedule does not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of this SaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by this SaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with this SaaS Schedule and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the SaaS Fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Hyland Cloud Service is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service is not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not permitted to use the Hyland Cloud Service in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute, license, or grant the use of the Hyland Cloud Service in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Hyland Cloud Service in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this SaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service; (b) sell, transfer, rent, lease or sub-license the Hyland Cloud Service to any third party; (c) alter or modify the Hyland Cloud Service; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service, or prepare derivative works therefrom; or (e) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice Customer for Initial Setup Fees in the amount set forth in the initial Purchase Table Schedule promptly following the Effective Date. Hyland will invoice Customer for Initial Setup Fees upon each additional purchase of Software for the Hyland Cloud Service upon acceptance of Customer’s purchase order for such Software.
3.2 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Purchase Table Schedule. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. Hyland will invoice Customer for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s data storage allocation as set forth in the initial Purchase Table.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Except as may be stated in a separate Schedule, the Add-On Services are part of the Hyland Cloud Service.
3.5 Other Fees. If Customer procures and Hyland provides any other services or deliverables in connection with the Hyland Cloud Service that are not covered by the fees and charges described in Sections 3.1 through 3.4 above, Hyland will invoice Customer for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Hyland Cloud Service, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Hyland Cloud Service, the U.S. Government hereby agrees that the Software, and the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software is developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Add-On Services or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will make available, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements to the Software, if and when released during the term of this SaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer's responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland's Cloud Software Version Policy available at Hyland's end user website (currently, community.hyland.com); Customer's failure to comply with Hyland's Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 EXCLUSIONS.
Generally. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
6. SECURITY. During the term of this SaaS Schedule, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this SaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this SaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with this SaaS Schedule and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under this SaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(g) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under this SaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of this SaaS Schedule the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section 8.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this SaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 11.2 of this SaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this SaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted by this SaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION 9 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6.2 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule and Section 11.1.1 below, the initial term of this SaaS Schedule will be the Initial Term; and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this SaaS Schedule shall terminate at the end of the then current term.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of this SaaS Schedule will be in violation of any law or regulation implemented or modified after the commencement of Hyland Cloud Service provided pursuant to this SaaS Schedule, Customer or Hyland, as the case may be, may terminate this SaaS Schedule upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, immediately upon any termination or expiration of this SaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this SaaS Schedule or the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service pursuant to the terms of this SaaS Schedule and the Agreement for a period following the expiration or termination of the SaaS Schedule (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including SaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to Section 11 above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this SaaS Schedule.
Confidential - Ó 2021 Hyland Software, Inc.
Effective October 24th 2022 to February 24th 2023
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SOFTWARE-AS-A-SERVICE SCHEDULE
This SaaS Schedule (“SaaS Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Purchase Table Schedule for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (2) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer in accordance with the Agreement and this SaaS Schedule.
“Hyland Cloud Service Support” means the services described in Section 5 of this Schedule.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Platform and the Host Web Site for use applicable to each Software module purchase under the Agreement.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Purchase Table Schedule.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the service level commitment included as part of the Hyland Cloud Service, as described in the Service Class Manual, and purchased by Customer as part of the Hyland Cloud Service.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during the term of this Schedule to correct errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means Customer’s employees that access and use the Hyland Cloud Service.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this SaaS Schedule Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to this SaaS Schedule, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of this SaaS Schedule. The initial Service Class purchased by Customer is set forth in the initial Purchase Table Schedule. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of this SaaS Schedule. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of this SaaS Schedule. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Return of Customer Data and Deletion. Upon termination or expiration of this SaaS Schedule for any reason:
(a) Upon written request by Customer to Hyland sent to cloud@hyland.com, made within thirty (30) days after the effective date of any such termination or expiration, for Customer Data extraction Professional Services (“Notice of Return of Customer Data”), Hyland will either: (1) return Customer Data to Customer by providing: Customer Data on one (1) or more encrypted hard drives or other similar media and an export file containing the relevant keyword values and related file locations for the Customer Data or (2) make available to Customer the Customer Data for extraction by Customer. Hyland will work with Customer on determining the extraction method most suitable to meet Customer’s requirements. Customer acknowledges and agrees that thirty (30) days after Hyland has sent or made available to Customer the Customer Data, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all such Customer Data from all of Hyland’s datacenters, including all replicated copies.
(b) Upon written request by Customer to Hyland sent to cloud@hyland.com, made within thirty (30) days after the effective date of any such termination or expiration, for the deletion of Customer Data (“Notice of Deletion of Customer Data”), Hyland will have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
(c) If Customer does not provide the Notice of Return of Customer Data or the Notice of Deletion of Customer Data in accordance with paragraph (a) or (b) above, Customer acknowledges and agrees that thirty (30) days after any termination or expiration of this SaaS Schedule, Hyland will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Data Location. Hyland shall store Customer Data at data centers located in the country(ies) indicated in the initial Purchase Table. Hyland may, at its expense, change the location of the Customer Data to other data centers; provided that such locations remain in that country.
1.5 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software from Hyland, this Schedule does not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of this SaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by this SaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with this SaaS Schedule and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the SaaS Fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Hyland Cloud Service is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service is not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not permitted to use the Hyland Cloud Service in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute, license, or grant the use of the Hyland Cloud Service in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Hyland Cloud Service in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this SaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service; (b) sell, transfer, rent, lease or sub-license the Hyland Cloud Service to any third party; (c) alter or modify the Hyland Cloud Service; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service, or prepare derivative works therefrom; or (e) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice Customer for Initial Setup Fees in the amount set forth in the initial Purchase Table Schedule promptly following the Effective Date. Hyland will invoice Customer for Initial Setup Fees upon each additional purchase of Software for the Hyland Cloud Service upon acceptance of Customer’s purchase order for such Software.
3.2 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Purchase Table Schedule. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. Hyland will invoice Customer for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s data storage allocation as set forth in the initial Purchase Table.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Except as may be stated in a separate Schedule, the Add-On Services are part of the Hyland Cloud Service.
3.5 Other Fees. If Customer procures and Hyland provides any other services or deliverables in connection with the Hyland Cloud Service that are not covered by the fees and charges described in Sections 3.1 through 3.4 above, Hyland will invoice Customer for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Hyland Cloud Service, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Hyland Cloud Service, the U.S. Government hereby agrees that the Software, and the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software is developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Add-On Services or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will make available, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements to the Software, if and when released during the term of this SaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service. Notwithstanding the foregoing, Customer acknowledges that it is Customer's responsibility to ensure that Customer is running a Cloud Compatible Version of the Software in accordance with Hyland's Cloud Software Version Policy available at Hyland's end user website (currently, community.hyland.com); Customer's failure to comply with Hyland's Cloud Software Version Policy shall be considered a material breach of the Agreement.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 EXCLUSIONS.
Generally. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
6. SECURITY. During the term of this SaaS Schedule, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this SaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this SaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with this SaaS Schedule and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under this SaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(g) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under this SaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of this SaaS Schedule the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section 8.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this SaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 11.2 of this SaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this SaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted by this SaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION 9 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6.2 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule and Section 11.1.1 below, the initial term of this SaaS Schedule will be the Initial Term; and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this SaaS Schedule shall terminate at the end of the then current term.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of this SaaS Schedule will be in violation of any law or regulation implemented or modified after the commencement of Hyland Cloud Service provided pursuant to this SaaS Schedule, Customer or Hyland, as the case may be, may terminate this SaaS Schedule upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, immediately upon any termination or expiration of this SaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this SaaS Schedule or the Agreement, in the event of any other termination of this SaaS Schedule or the Agreement, Hyland shall, upon Customer’s request, continue to provide Hyland Cloud Service Support and access to the Hyland Cloud Service (except where Hyland is enjoined) pursuant to the terms of this SaaS Schedule and the Agreement for a period of up to ninety (90) calendar days following such a termination (the “Transition Period”), provided Customer pays all applicable SaaS Fees and Consumption Fees for such Transition Period plus an additional five percent (5%) of such fees. During such Transition Period, both parties will reasonably cooperate and use their reasonable efforts to provide for an orderly transition that is designed to minimize the disruption to Customer’s business operations. Such cooperation and assistance will be limited to Professional Services consisting of consulting services and subject to Hyland’s then-current rates for such Professional Services which will be set out in a purchase order or a Services Proposal in accordance with the Professional Services Schedule to the Agreement.
12. COMPLIANCE WITH LAWS. Subject to Section 11 above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this SaaS Schedule.
Confidential - Ó 2021 Hyland Software, Inc.
Effective September 27th 2021 to October 24th 2022
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
This SaaS Schedule (“SaaS Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Purchase Table Schedule for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (2) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer in accordance with the Agreement and this SaaS Schedule.
“Hyland Cloud Service Support” means the services described in Section 5 of this Schedule.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Platform and the Host Web Site for use applicable to each Software module purchase under the Agreement.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Purchase Table Schedule.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the service level commitment included as part of the Hyland Cloud Service, as described in the Service Class Manual, and purchased by Customer as part of the Hyland Cloud Service.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during the term of this Schedule to correct errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means Customer’s employees that access and use the Hyland Cloud Service.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this SaaS Schedule Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to this SaaS Schedule, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of this SaaS Schedule. The initial Service Class purchased by Customer is set forth in the initial Purchase Table Schedule. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term of this SaaS Schedule. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of this SaaS Schedule. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Return of Customer Data and Deletion. Upon termination or expiration of this SaaS Schedule for any reason:
(a) Upon written request by Customer to Hyland sent to cloud@hyland.com, made within thirty (30) days after the effective date of any such termination or expiration, for Customer Data extraction Professional Services (“Notice of Return of Customer Data”), Hyland will either: (1) return Customer Data to Customer by providing: Customer Data on one (1) or more encrypted hard drives or other similar media and an export file containing the relevant keyword values and related file locations for the Customer Data or (2) make available to Customer the Customer Data for extraction by Customer. Hyland will work with Customer on determining the extraction method most suitable to meet Customer’s requirements. Customer acknowledges and agrees that thirty (30) days after Hyland has sent or made available to Customer the Customer Data, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all such Customer Data from all of Hyland’s datacenters, including all replicated copies.
(b) Upon written request by Customer to Hyland sent to cloud@hyland.com, made within thirty (30) days after the effective date of any such termination or expiration, for the deletion of Customer Data (“Notice of Deletion of Customer Data”), Hyland will have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
(c) If Customer does not provide the Notice of Return of Customer Data or the Notice of Deletion of Customer Data in accordance with paragraph (a) or (b) above, Customer acknowledges and agrees that thirty (30) days after any termination or expiration of this SaaS Schedule, Hyland will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Data Location. Hyland shall store Customer Data at data centers located in the country(ies) indicated in the initial Purchase Table. Hyland may, at its expense, change the location of the Customer Data to other data centers; provided that such locations remain in that country.
1.5 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software from Hyland, this Schedule does not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of this SaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by this SaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with this SaaS Schedule and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the SaaS Fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Hyland Cloud Service is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service is not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not permitted to use the Hyland Cloud Service in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute, license, or grant the use of the Hyland Cloud Service in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Hyland Cloud Service in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this SaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service; (b) sell, transfer, rent, lease or sub-license the Hyland Cloud Service to any third party; (c) alter or modify the Hyland Cloud Service; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service, or prepare derivative works therefrom; or (e) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice Customer for Initial Setup Fees in the amount set forth in the initial Purchase Table Schedule promptly following the Effective Date. Hyland will invoice Customer for Initial Setup Fees upon each additional purchase of Software for the Hyland Cloud Service upon acceptance of Customer’s purchase order for such Software.
3.2 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Purchase Table Schedule. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. Hyland will invoice Customer for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s data storage allocation as set forth in the initial Purchase Table.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Except as may be stated in a separate Schedule, the Add-On Services are part of the Hyland Cloud Service.
3.5 Other Fees. If Customer procures and Hyland provides any other services or deliverables in connection with the Hyland Cloud Service that are not covered by the fees and charges described in Sections 3.1 through 3.4 above, Hyland will invoice Customer for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Hyland Cloud Service, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Hyland Cloud Service, the U.S. Government hereby agrees that the Software, and the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software is developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Add-On Services or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will make available, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements to the Software, if and when released during the term of this SaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 EXCLUSIONS.
Generally. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
6. SECURITY. During the term of this SaaS Schedule, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this SaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this SaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with this SaaS Schedule and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under this SaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(g) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under this SaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of this SaaS Schedule the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section 8.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this SaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 11.2 of this SaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this SaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted by this SaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION 9 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6.2 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule and Section 11.1.1 below, the initial term of this SaaS Schedule will be the Initial Term; and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this SaaS Schedule shall terminate at the end of the then current term.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of this SaaS Schedule will be in violation of any law or regulation implemented or modified after the commencement of Hyland Cloud Service provided pursuant to this SaaS Schedule, Customer or Hyland, as the case may be, may terminate this SaaS Schedule upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, immediately upon any termination or expiration of this SaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this SaaS Schedule or the Agreement, in the event of any other termination of this SaaS Schedule or the Agreement, Hyland shall, upon Customer’s request, continue to provide Hyland Cloud Service Support and access to the Hyland Cloud Service (except where Hyland is enjoined) pursuant to the terms of this SaaS Schedule and the Agreement for a period of up to ninety (90) calendar days following such a termination (the “Transition Period”), provided Customer pays all applicable SaaS Fees and Consumption Fees for such Transition Period plus an additional five percent (5%) of such fees. During such Transition Period, both parties will reasonably cooperate and use their reasonable efforts to provide for an orderly transition that is designed to minimize the disruption to Customer’s business operations. Such cooperation and assistance will be limited to Professional Services consisting of consulting services and subject to Hyland’s then-current rates for such Professional Services which will be set out in a purchase order or a Services Proposal in accordance with the Professional Services Schedule to the Agreement.
12. COMPLIANCE WITH LAWS. Subject to Section 11 above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this SaaS Schedule.
Confidential - Ó 2021 Hyland Software, Inc.
Effective May 13th 2021 to September 27th 2021
DownloadTable of Contents
SOFTWARE-AS-A-SERVICE SCHEDULE
This SaaS Schedule (“SaaS Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the initial Purchase Table Schedule for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the SaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Hyland Cloud Service, or (2) if no such “Help Files” are included in the Hyland Cloud Service, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service.
“Host Web Site” means the web site hosted by Hyland as part of the Hyland Cloud Service on a web server included in the Hyland Cloud Platform used to access the Hyland Cloud Service.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service.
“Hyland Cloud Platform” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, Hosted 3rd Party Software, and Host Web Site, responsible for providing the Hyland Cloud Service, whether owned by Hyland or a third party.
“Hyland Cloud Service” means Hyland’s provision of Software and the Hyland Cloud Platform for use by Customer in accordance with the Agreement and this SaaS Schedule.
“Hyland Cloud Service Support” means the services described in Section 5 of this Schedule.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Platform and the Host Web Site for use applicable to each Software module purchase under the Agreement.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service issue or error.
“SaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service. The initial SaaS Fees are set forth in the initial Purchase Table Schedule.
“SaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#saas-security-attachment. The SaaS Security Attachment describes Hyland's current security processes and procedures. These processes and procedures may be updated from time to time, but will not be materially reduced.
“Service Class” means the service level commitment included as part of the Hyland Cloud Service, as described in the Service Class Manual, and purchased by Customer as part of the Hyland Cloud Service.
“Service Class Manual” means the latest version of the manual describing any available Service Classes, as posted by Hyland from time to time on a website designated by Hyland.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Testing Lite Environment” means a separate instance of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during the term of this Schedule to correct errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Users” means Customer’s employees that access and use the Hyland Cloud Service.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this SaaS Schedule Hyland will: (a) make the Hyland Cloud Service available to Customer pursuant to this SaaS Schedule, the SaaS Security Attachment, Documentation and the applicable Service Class Manual; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.2 Service Class. Prior to or on the Effective Date, Hyland has delivered a then-current copy of the applicable Service Class Manual to Customer. After the Effective Date, Hyland will have the right to modify the applicable Service Class Manual (including the right to issue an entirely restated Service Class Manual) from time to time. The modifications or the revised Service Class Manual will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice. Notwithstanding the foregoing, no modifications of any Service Class Manual relating to Customer’s then-current Service Class will be effective until the next renewal of this SaaS Schedule. The initial Service Class purchased by Customer is set forth in the initial Purchase Table Schedule. To the extent Service Class upgrades or downgrades are available related to the Hyland Cloud Service purchase by Customer, Customer may upgrade the Service Class at any time, but may downgrade such Service Class only after the expiration of the Initial Term (as defined below) of this SaaS Schedule. In the event Customer elects to downgrade such Service Class, such downgrade will not be effective until the beginning of the next renewal of this SaaS Schedule. To modify a Service Class selection, Customer must submit a purchase order indicating the new Service Class.
1.3 Return of Customer Data and Deletion. Upon termination or expiration of this SaaS Schedule for any reason:
(a) Upon written request by Customer to Hyland sent to cloud@hyland.com, made within thirty (30) days after the effective date of any such termination or expiration, for Customer Data extraction Professional Services (“Notice of Return of Customer Data”), Hyland will either: (1) return Customer Data to Customer by providing: Customer Data on one (1) or more encrypted hard drives or other similar media and an export file containing the relevant keyword values and related file locations for the Customer Data or (2) make available to Customer the Customer Data for extraction by Customer. Hyland will work with Customer on determining the extraction method most suitable to meet Customer’s requirements. Customer acknowledges and agrees that thirty (30) days after Hyland has sent or made available to Customer the Customer Data, Hyland shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all such Customer Data from all of Hyland’s datacenters, including all replicated copies.
(b) Upon written request by Customer to Hyland sent to cloud@hyland.com, made within thirty (30) days after the effective date of any such termination or expiration, for the deletion of Customer Data (“Notice of Deletion of Customer Data”), Hyland will have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
(c) If Customer does not provide the Notice of Return of Customer Data or the Notice of Deletion of Customer Data in accordance with paragraph (a) or (b) above, Customer acknowledges and agrees that thirty (30) days after any termination or expiration of this SaaS Schedule, Hyland will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data from all of Hyland’s datacenters, including all replicated copies.
1.4 Data Location. Hyland shall store Customer Data at data centers located in the country(ies) indicated in the initial Purchase Table. Hyland may, at its expense, change the location of the Customer Data to other data centers; provided that such locations remain in that country.
1.5 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Cloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software from Hyland, this Schedule does not apply to such On-Premise Software.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service Use Grant. During the term of this SaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use the Hyland Cloud Service as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
The Hyland Cloud Service is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service in any manner not expressly permitted by this SaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and shall only access the Hyland Cloud Service in a manner consistent with this SaaS Schedule and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software client modules or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the SaaS Fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and are not intended to be used on a stand-alone basis.
2.2 Volume Use Restriction. There are certain Software products that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars.
2.3 Test Environments. Customer may purchase limited access to Testing Environments or Testing Lite Environments, or both. Hyland agrees that the security measures described in the SaaS Security Attachment are also applied to the Testing Environment and Testing Lite Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment and Testing Lite Environment. If, at any time, Customer is not satisfied with the Testing Environment or Testing Lite Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment or Testing Lite Environment.
2.4 No High Risk Use. The Hyland Cloud Service is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service is not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not permitted to use the Hyland Cloud Service in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute, license, or grant the use of the Hyland Cloud Service in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Hyland Cloud Service in connection with any High Risk Use.
2.5 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this SaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment.
2.6 Third Party Services and Content. The Hyland Cloud Service may contain functionality which allows Customer to: (a) access, link or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided by third parties and (b) access third party websites and content. Hyland has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service.
2.7 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service; (b) sell, transfer, rent, lease or sub-license the Hyland Cloud Service to any third party; (c) alter or modify the Hyland Cloud Service; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service, or prepare derivative works therefrom; or (e) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.8 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.9 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice Customer for Initial Setup Fees in the amount set forth in the initial Purchase Table Schedule promptly following the Effective Date. Hyland will invoice Customer for Initial Setup Fees upon each additional purchase of Software for the Hyland Cloud Service upon acceptance of Customer’s purchase order for such Software.
3.2 SaaS Fees. Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay SaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Purchase Table Schedule. Hyland will invoice Customer on or after the Effective Date for SaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the SaaS Fees for the Hyland Cloud Service for any renewal period by up to ten percent (10%) of the previous year’s SaaS Fees. For any subsequent years, Hyland will invoice Customer for SaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software modules for the Hyland Cloud Service, Hyland will invoice Customer for SaaS Fees for such additional Software modules on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, SaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. Hyland will invoice Customer for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s data storage allocation as set forth in the initial Purchase Table.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Except as may be stated in a separate Schedule, the Add-On Services are part of the Hyland Cloud Service.
3.5 Other Fees. If Customer procures and Hyland provides any other services or deliverables in connection with the Hyland Cloud Service that are not covered by the fees and charges described in Sections 3.1 through 3.4 above, Hyland will invoice Customer for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Hyland Cloud Service, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Hyland Cloud Service, the U.S. Government hereby agrees that the Software, and the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software is developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Add-On Services or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service, including assistance and advice related to the operation of the Hyland Cloud Service.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will make available, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements to the Software, if and when released during the term of this SaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Platform from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service.
Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.2 EXCLUSIONS.
Generally. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or from any error or defect in any configuration of any component of the Hyland Cloud Service, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service; or (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); or in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule). Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
6. SECURITY. During the term of this SaaS Schedule, Hyland shall maintain a security program which shall conform to the SaaS Security Attachment.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this SaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this SaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service;
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with this SaaS Schedule and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under this SaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(g) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service. Hyland shall have no responsibility or liability under this SaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service Limited Warranty. Hyland warrants to Customer that during the term of this SaaS Schedule the Hyland Cloud Service will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service if: (i) any component of the Hyland Cloud Service has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section 8.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this SaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 11.2 of this SaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid SaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service, or to replace the relevant portions of the Hyland Cloud Service with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this SaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid SaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid SaaS Fees” shall mean an amount equal to the total SaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (v) any Customer Data; (w) use of the Hyland Cloud Service other than as expressly permitted by this SaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION 9 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6.2 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
Service Class | Multiplier |
Silver | 1 |
Gold | 2 |
Platinum | 3 |
Double Platinum | 4 |
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule and Section 11.1.1 below, the initial term of this SaaS Schedule will be the three (3) year period that commences on the Effective Date (the “Initial Term”); and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this SaaS Schedule shall terminate at the end of the then current term.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of this SaaS Schedule will be in violation of any law or regulation implemented or modified after the commencement of Hyland Cloud Service provided pursuant to this SaaS Schedule, Customer or Hyland, as the case may be, may terminate this SaaS Schedule upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, immediately upon any termination or expiration of this SaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this SaaS Schedule or the Agreement, in the event of any other termination of this SaaS Schedule or the Agreement, Hyland shall, upon Customer’s request, continue to provide Hyland Cloud Service Support and access to the Hyland Cloud Service (except where Hyland is enjoined) pursuant to the terms of this SaaS Schedule and the Agreement for a period of up to ninety (90) calendar days following such a termination (the “Transition Period”), provided Customer pays all applicable SaaS Fees and Consumption Fees for such Transition Period plus an additional five percent (5%) of such fees. During such Transition Period, both parties will reasonably cooperate and use their reasonable efforts to provide for an orderly transition that is designed to minimize the disruption to Customer’s business operations. Such cooperation and assistance will be limited to Professional Services consisting of consulting services and subject to Hyland’s then-current rates for such Professional Services which will be set out in a purchase order or a Services Proposal in accordance with the Professional Services Schedule to the Agreement.
12. COMPLIANCE WITH LAWS. Subject to Section 11 above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this SaaS Schedule.
Confidential - Ó 2021 Hyland Software, Inc.
Software License and Maintenance Schedule - Subscription
Effective February 27th 2024
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE – SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (this “Subscription Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this Subscription Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Subscription Schedule, and any other agreement within the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Alfresco Instance” means the installation of the Software into Customer’s individual repository or process environment using the license key generated by Hyland upon Customer’s execution of an Order Form or Hyland’s acceptance of Customer’s purchase order. The Alfresco Instance can be deployed over multiple physical or virtual servers limited to the number of Cores licensed to create one logical repository.
“Cores” means physical computer processing cores or virtual Central Processing Units (vCPUs), sold in groups of four Cores. As licensed by Hyland, an initial set of four Cores allows Customer to deploy the Alfresco Software on up to four physical cores, or up to four vCPUs, on a single server instance. If Customer purchases eight or more Cores, Customer may deploy the Software on physical cores or vCPUs equal to the number of Cores it has purchased, without limitation, as to the number of service instances upon which they can run. For example, if Customer purchases Alfresco Content Services (with eight Cores), Customer may deploy the Software on up or eight physical cores, or up to eight vCPUs, on any number of server instances.
“CPUs” means a single physical central processing unit with up to four (4) Cores on which the Alfresco Software may be installed or executed. In virtualized environments, a CPU is defined as an allocation of 1 to 4 virtual Cores to a given virtual machine instance. As an example, a virtual machine with 6 virtual Cores counts as 2 CPUs.
“Delivery” means: (i) the electronic downloading of the Software onto Customer’s systems, (ii) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (iii) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized channel partners).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Maintenance and Support” means for Software, (a) Error Correction Services; (b) Technical Support Services; and (c) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Production Certificate” means license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time any Software product or version of the Software licensed under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on such web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of the Agreement to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the Agreement), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to the Contractor use restrictions set forth herein, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the Contractor use restrictions set forth herein.
1.2 Use Restriction. The Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Certain Software products that are volume-based (which shall include the number of Cores, Alfresco Instances and/or users) may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; and/or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client licenses, platforms or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid the applicable fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software licenses purchased by Customer. In the case of Alfresco, Customer will not combine, call, link to, or otherwise use the Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Cores or users.
1.3 Production and Test Systems. Unless otherwise stated in an Order Form, Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. Subject to the payment of any additional applicable fees, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration functionality of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted purchase order or Order Form delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver a purchase order or execute an Order Form for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software or upon request) may grant additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland’s products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Hyland Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Cloud Services in connection with any High Risk Use.
1.9 Audit Rights. During the term of the Agreement and for one (1) year thereafter, upon reasonable notice to Customer, Hyland shall be permitted access to Customer’s facilities and records, during regular business hours, to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
1.11 ACS Specific Restriction Only. If Customer purchases Alfresco Content Services (“ACS”), the following restriction shall apply: The Alfresco Content Services (ACS) includes a workflow capability along with a predetermined set of document-review and approval workflows, and a set of predetermined management-task functions. Customer may use and modify the predetermined workflows and management tasks that are provided with the ACS subscription. However, Customer may not use the workflow software to design, create or run other types of workflows, business processes and/or management tasks. A separate subscription for Alfresco Process Services (APS) software is required for any such uses.
1.12 Nuxeo Software. If Customer is purchasing Nuxeo Software, Nuxeo Software is subject to additional licensing terms, which are available at https://legal.hyland.com/Customer-Legal-Center#nuxeo-subscription-terms.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Following expiration of the Initial Term of the Agreement, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 Maintenance and Support Terms. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of the Agreement.
5.2 Exclusions.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 Certain Other Responsibilities of Customer.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 Professional Services for Projects Not Covered by Technical Support Services or Error Correction Services. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 Implementation of Upgrades And Enhancements to Regulated Products. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.6 Technical Support Contacts. Hyland will provide Maintenance and Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of the Agreement by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.7 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. LIMITED WARRANTY FOR SOFTWARE.
6.1 Hyland warrants to Customer that during the term of the Agreement the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if: (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation; or (d) to the extent the Software is Retired Software.
6.2 Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its termination obligations under the Agreement, Hyland will provide a refund to Customer of the “unused portion of pre-paid Subscription Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in subparagraph (d) of the immediately preceding Section, Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in the first subsection (Generally) of this Infringement Indemnification Section that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS INFRINGEMENT INDEMNIFICATION SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
9. CONTROLLING LANGUAGE. Hyland may make other versions of this Subscription Schedule available in other languages at this online location. This English language version of this Subscription Schedule controls over any version of the Subscription Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Subscription Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Subscription Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit A shall apply:
- The Subscription Fees Section of the Subscription Schedule shall be replaced in its entirety as follows:
Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term of this Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Hyland will adjust the Subscription Fees annually on each anniversary of the Effective Date of the Agreement by the last known accumulated value of IPCA for a period of twelve (12) months at the time Hyland issues the invoice. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit B shall apply:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential – © 2023 Hyland Software, Inc.
Effective December 11th 2023 to February 27th 2024
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE – SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (this “Subscription Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this Subscription Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Subscription Schedule, and any other agreement within the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Active Processes” means a process instance within the Alfresco Software that has not been completed, cancelled, or formally suspended. Processes that have been initiated – but which have not been completed, cancelled, or formally suspended, or which are in a “wait” state – shall constitute Active Processes regardless of the level of user or machine activity associated with those processes over time.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Alfresco Instance” means the installation of the Software into Customer’s individual repository or process environment using the license key generated by Hyland upon Customer’s execution of an Order Form or Hyland’s acceptance of Customer’s purchase order. The Alfresco Instance can be deployed over multiple physical or virtual servers limited to the number of Cores licensed to create one logical repository.
“Cores” means physical computer processing cores or virtual Central Processing Units (vCPUs), sold in groups of four Cores. As licensed by Hyland, an initial set of four Cores allows Customer to deploy the Alfresco Software on up to four physical cores, or up to four vCPUs, on a single server instance. If Customer purchases eight or more Cores, Customer may deploy the Software on physical cores or vCPUs equal to the number of Cores it has purchased, without limitation, as to the number of service instances upon which they can run. For example, if Customer purchases Alfresco Content Services (with eight Cores), Customer may deploy the Software on up or eight physical cores, or up to eight vCPUs, on any number of server instances.
“CPUs” means a single physical central processing unit with up to four (4) Cores on which the Alfresco Software may be installed or executed. In virtualized environments, a CPU is defined as an allocation of 1 to 4 virtual Cores to a given virtual machine instance. As an example, a virtual machine with 6 virtual Cores counts as 2 CPUs.
“Delivery” means: (a) the electronic downloading of the Software onto Customer’s systems, (b) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (c) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized channel partners).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Initial Term” means, unless otherwise defined in the General Terms Schedule, and as used in this Subscription Schedule, (a) the initial term for which Customer has purchased products or services governed by this Subscription Schedule as set forth on the Incorporating Document for such product or service; or (b) if an initial term is not set forth as described in (a), the three (3) year period that begins on the date of Hyland’s acceptance of the applicable purchase order.
“Maintenance and Support” means for Software, (a) Error Correction Services; (b) Technical Support Services; and (c) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Order Form” means, unless otherwise defined in the General Terms Schedule, and as used in this Subscription Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Production Certificate” means license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time any Software product or version of the Software licensed under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on such web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the Agreement), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to the Contractor use restrictions set forth herein, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of the Contractor use restrictions set forth herein.
1.2 Use Restriction. The Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Certain Software products that are volume-based (which shall include the number of Cores, Alfresco Instances and/or users) may: (a no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; and/or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client licenses, platforms or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the applicable fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software licenses purchased by Customer. In the case of Alfresco Software, Customer will not combine, call, link to, or otherwise use the Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Cores or users.
1.3 Production and Test Systems. Unless otherwise stated in an Order Form, Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration functionality of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted Order Form delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver an Order Form to Hyland for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland’s products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Cloud Services in connection with any High Risk Use.
1.9 Audit Rights. During the term of this Subscription Schedule and for one (1) year thereafter, upon reasonable notice to Customer, Hyland shall be permitted access to Customer’s facilities and records, during regular business hours, to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
1.11 ACS Specific Restriction Only. If Customer purchases Alfresco Content Services (“ACS”), the following restriction shall apply: The Alfresco Content Services (ACS) includes a workflow capability along with a predetermined set of document-review and approval workflows, and a set of predetermined management-task functions. Customer may use and modify the predetermined workflows and management tasks that are provided with the ACS subscription. However, Customer may not use the workflow software to design, create or run other types of workflows, business processes and/or management tasks. A separate subscription for Alfresco Process Services (APS) software is required for any such uses.
1.12 Nuxeo Software. If Customer is purchasing Nuxeo Software, Nuxeo Software is subject to additional licensing terms, which are available at https://legal.hyland.com/Customer-Legal-Center#nuxeo-subscription-terms.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 Maintenance and Support Terms. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Schedule.
5.2 Exclusions.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (i) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (ii) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (iii) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (iv) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (v) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 Certain Other Responsibilities of Customer.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 Professional Services for Projects Not Covered by Technical Support Services or Error Correction Services. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 Implementation of Upgrades And Enhancements to Regulated Products. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.6 Technical Support Contacts. Hyland will provide Maintenance and Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Subscription Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.7 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. LIMITED WARRANTY FOR SOFTWARE.
6.1 Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if: (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation; or (d) to the extent the Software is Retired Software.
6.2 Hyland’s sole obligation, and Customer’s sole exclusive remedy for any non-conformities to the express limited warranties under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Additional Effects or Consequences of Termination Section of this Subscription Schedule, Hyland will provide a refund to Customer of the “unused portion of pre-paid Subscription Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in subparagraph (d) of the immediately preceding Section, Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in the first subsection (Generally) of this Infringement Indemnification Section that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS INFRINGEMENT INDEMNIFICATION SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
9. CONTROLLING LANGUAGE. Hyland may make other versions of this Subscription Schedule available in other languages at this online location. This English language version of this Subscription Schedule controls over any version of the Subscription Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Subscription Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Subscription Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit A shall apply:
- The Subscription Fees Section of the Subscription Schedule shall be replaced in its entirety as follows:
Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term of this Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Hyland will adjust the Subscription Fees annually on each anniversary of the Effective Date of the Agreement by the last known accumulated value of IPCA for a period of twelve (12) months at the time Hyland issues the invoice. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit B shall apply:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential – © 2023 Hyland Software, Inc.
Effective October 4th 2023 to December 11th 2023
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE – SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (this “Subscription Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this Subscription Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Subscription Schedule, and any other agreement within the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Active Processes” means a process instance within the Alfresco Software that has not been completed, cancelled, or formally suspended. Processes that have been initiated – but which have not been completed, cancelled, or formally suspended, or which are in a “wait” state – shall constitute Active Processes regardless of the level of user or machine activity associated with those processes over time.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Alfresco Instance” means the installation of the Software into Customer’s individual repository or process environment using the license key generated by Hyland upon Customer’s execution of an Order Form or Hyland’s acceptance of Customer’s purchase order. The Alfresco Instance can be deployed over multiple physical or virtual servers limited to the number of Cores licensed to create one logical repository.
“Cores” means physical computer processing cores or virtual Central Processing Units (vCPUs), sold in groups of four Cores. As licensed by Hyland, an initial set of four Cores allows Customer to deploy the Alfresco Software on up to four physical cores, or up to four vCPUs, on a single server instance. If Customer purchases eight or more Cores, Customer may deploy the Software on physical cores or vCPUs equal to the number of Cores it has purchased, without limitation, as to the number of service instances upon which they can run. For example, if Customer purchases Alfresco Content Services (with eight Cores), Customer may deploy the Software on up or eight physical cores, or up to eight vCPUs, on any number of server instances.
“CPUs” means a single physical central processing unit with up to four (4) Cores on which the Alfresco Software may be installed or executed. In virtualized environments, a CPU is defined as an allocation of 1 to 4 virtual Cores to a given virtual machine instance. As an example, a virtual machine with 6 virtual Cores counts as 2 CPUs.
“Delivery” means: (a) the electronic downloading of the Software onto Customer’s systems, (b) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (c) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized channel partners).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Initial Term” means, unless otherwise defined in the General Terms Schedule, and as used in this Subscription Schedule, (a) the initial term for which Customer has purchased products or services governed by this Subscription Schedule as set forth on the Incorporating Document for such product or service; or (b) if an initial term is not set forth as described in (a), the three (3) year period that begins on the date of Hyland’s acceptance of the applicable purchase order.
“Maintenance and Support” means for Software, (a) Error Correction Services; (b) Technical Support Services; and (c) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Order Form” means, unless otherwise defined in the General Terms Schedule, and as used in this Subscription Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Production Certificate” means license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time any Software product or version of the Software licensed under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on such web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the Agreement), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to the Contractor use restrictions set forth herein, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of the Contractor use restrictions set forth herein.
1.2 Use Restriction. The Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Certain Software products that are volume-based (which shall include the number of Cores, Alfresco Instances and/or users) may: (a no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; and/or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client licenses, platforms or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the applicable fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software licenses purchased by Customer. In the case of Alfresco Software, Customer will not combine, call, link to, or otherwise use the Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Cores or users.
1.3 Production and Test Systems. Unless otherwise stated in an Order Form, Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration functionality of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted Order Form delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver an Order Form to Hyland for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland’s products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Cloud Services in connection with any High Risk Use.
1.9 Audit Rights. During the term of this Subscription Schedule and for one (1) year thereafter, upon reasonable notice to Customer, Hyland shall be permitted access to Customer’s facilities and records, during regular business hours, to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
1.11 ACS Specific Restriction Only. If Customer purchases Alfresco Content Services (“ACS”), the following restriction shall apply: The Alfresco Content Services (ACS) includes a workflow capability along with a predetermined set of document-review and approval workflows, and a set of predetermined management-task functions. Customer may use and modify the predetermined workflows and management tasks that are provided with the ACS subscription. However, Customer may not use the workflow software to design, create or run other types of workflows, business processes and/or management tasks. A separate subscription for Alfresco Process Services (APS) software is required for any such uses.
1.12 Nuxeo Software. If Customer is purchasing Nuxeo Software, Nuxeo Software is subject to additional licensing terms, which are available at https://legal.hyland.com/NuxeoSubscriptionTerms.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 Maintenance and Support Terms. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Schedule.
5.2 Exclusions.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (i) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (ii) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (iii) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (iv) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (v) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 Certain Other Responsibilities of Customer.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 Professional Services for Projects Not Covered by Technical Support Services or Error Correction Services. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 Implementation of Upgrades And Enhancements to Regulated Products. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.6 Technical Support Contacts. Hyland will provide Maintenance and Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Subscription Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.7 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. LIMITED WARRANTY FOR SOFTWARE.
6.1 Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if: (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation; or (d) to the extent the Software is Retired Software.
6.2 Hyland’s sole obligation, and Customer’s sole exclusive remedy for any non-conformities to the express limited warranties under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Additional Effects or Consequences of Termination Section of this Subscription Schedule, Hyland will provide a refund to Customer of the “unused portion of pre-paid Subscription Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in subparagraph (d) of the immediately preceding Section, Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in the first subsection (Generally) of this Infringement Indemnification Section that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS INFRINGEMENT INDEMNIFICATION SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Brasil LTDA. Hyland Software Germany GmbH | Exhibit A Exhibit B |
9. CONTROLLING LANGUAGE. Hyland may make other versions of this Subscription Schedule available in other languages at this online location. This English language version of this Subscription Schedule controls over any version of the Subscription Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Subscription Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Subscription Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit A shall apply:
- The Subscription Fees Section of the Subscription Schedule shall be replaced in its entirety as follows:
Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term of this Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Hyland will adjust the Subscription Fees annually on each anniversary of the Effective Date of the Agreement by the last known accumulated value of IPCA for a period of twelve (12) months at the time Hyland issues the invoice. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit B shall apply:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential – © 2023 Hyland Software, Inc.
Effective June 2nd 2023 to October 4th 2023
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE – SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
As of the Effective Date of the Incorporating Document (as defined below), this Software License and Maintenance Schedule – Subscription (this “Subscription Schedule”) is part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland, which incorporates this Subscription Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Subscription Schedule.
DEFINED TERMS
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Active Processes” means a process instance within the Alfresco Software that has not been completed, cancelled, or formally suspended. Processes that have been initiated – but which have not been completed, cancelled, or formally suspended, or which are in a “wait” state – shall constitute Active Processes regardless of the level of user or machine activity associated with those processes over time.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Alfresco Instance” means the installation of the Software into Customer’s individual repository or process environment using the license key generated by Hyland upon Customer’s execution of an Order Form or Hyland’s acceptance of Customer’s purchase order. The Alfresco Instance can be deployed over multiple physical or virtual servers limited to the number of Cores licensed to create one logical repository.
“Cores” means physical computer processing cores or virtual Central Processing Units (vCPUs), sold in groups of four Cores. As licensed by Hyland, an initial set of four Cores allows Customer to deploy the Alfresco Software on up to four physical cores, or up to four vCPUs, on a single server instance. If Customer purchases eight or more Cores, Customer may deploy the Software on physical cores or vCPUs equal to the number of Cores it has purchased, without limitation, as to the number of service instances upon which they can run. For example, if Customer purchases Alfresco Content Services (with eight Cores), Customer may deploy the Software on up or eight physical cores, or up to eight vCPUs, on any number of server instances.
“CPUs” means a single physical central processing unit with up to four (4) Cores on which the Alfresco Software may be installed or executed. In virtualized environments, a CPU is defined as an allocation of 1 to 4 virtual Cores to a given virtual machine instance. As an example, a virtual machine with 6 virtual Cores counts as 2 CPUs.
“Delivery” means: (a) the electronic downloading of the Software onto Customer’s systems, (b) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (c) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized channel partners).
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported in accordance with this Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Initial Term” means, unless otherwise defined in the General Terms Schedule, and as used in this Subscription Schedule, (a) the initial term for which Customer has purchased products or services governed by this Subscription Schedule as set forth on the applicable Cover Page, Purchase Table Schedule, or Incorporating Document for such product or service; or (b) if an initial term is not set forth as described in (a), the three (3) year period that begins on the date of Hyland’s acceptance of the applicable purchase order.
“Maintenance and Support” means for Software, (a) Error Correction Services; (b) Technical Support Services; and (c) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Order Form” means, unless otherwise defined in the General Terms Schedule, and as used in this Subscription Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Production Certificate” means license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time any Software product or version of the Software licensed under this Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on such web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to its end users generally during the term of this Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with this Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in this Agreement), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to the Contractor use restrictions set forth herein, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by this Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of the Contractor use restrictions set forth herein.
1.2 Use Restriction. The Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Certain Software products that are volume-based (which shall include the number of Cores, Alfresco Instances and/or users) may: (a no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; and/or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client licenses, platforms or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the applicable fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software licenses purchased by Customer. In the case of Alfresco Software, Customer will not combine, call, link to, or otherwise use the Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Cores or users.
1.3 Production and Test Systems. Unless otherwise stated in an Order Form, Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration functionality of the Software licensed by Customer under this Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted order form delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver an order form with Hyland for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and this Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland’s products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of this Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of this Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of this Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software and/or any Hyland Cloud Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Such Software and/or Cloud Services are not designed or intended for use in any situation where failure or fault of any kind of the Software and/or Cloud Services could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Software and/or any Hyland Cloud Service is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software or Cloud Services for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its Contractors use of the Software and/or Cloud Services in connection with any High Risk Use.
1.9 Audit Rights. During the term of this Subscription Schedule and for one (1) year thereafter, upon reasonable notice to Customer, Hyland shall be permitted access to Customer’s facilities and records, during regular business hours, to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms this Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into this Agreement.
1.10 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
1.11 ACS Specific Restriction Only. If Customer purchases Alfresco Content Services (“ACS”), the following restriction shall apply: The Alfresco Content Services (ACS) includes a workflow capability along with a predetermined set of document-review and approval workflows, and a set of predetermined management-task functions. Customer may use and modify the predetermined workflows and management tasks that are provided with the ACS subscription. However, Customer may not use the workflow software to design, create or run other types of workflows, business processes and/or management tasks. A separate subscription for Alfresco Process Services (APS) software is required for any such uses.
1.12 Nuxeo Software. If Customer is purchasing Nuxeo Software, Nuxeo Software is subject to additional licensing terms, which are available at https://legal.hyland.com/NuxeoSubscriptionTerms.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under this Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software, Add-On Services, and the Hyland Cloud Service, as the case may be, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software, Add-On Services and Hyland Cloud Service, as the case may be, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service, and Add-On Services, as the case may be, qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software, Add-On Services or Hyland Cloud Service, as the case may be, to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software, Add-On Services and Hyland Cloud Service, or Documentation, as the case may be, by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 Maintenance and Support Terms. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Schedule.
5.2 Exclusions.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under this Agreement: (i) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (ii) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (iii) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (iv) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (v) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 Certain Other Responsibilities of Customer.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 Professional Services for Projects Not Covered by Technical Support Services or Error Correction Services. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 Implementation of Upgrades And Enhancements to Regulated Products. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.6 Technical Support Contacts. Hyland will provide Maintenance and Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Subscription Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.7 Professional Services. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. LIMITED WARRANTY FOR SOFTWARE.
6.1 Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if: (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation; or (d) to the extent the Software is Retired Software.
6.2 Hyland’s sole obligation, and Customer’s sole exclusive remedy for any non-conformities to the express limited warranties under this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under the Additional Effects or Consequences of Termination Section of this Subscription Schedule, Hyland will provide a refund to Customer of the “unused portion of pre-paid Subscription Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in subparagraph (d) of the immediately preceding Section, Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the pro rata portion of the Subscription Fees prepaid by Customer, if any, for any portion of the then current term that would have remained after the effective date of termination.
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in the first subsection (Generally) of this Infringement Indemnification Section that arise from: (a) use of the Software by Customer other than as expressly permitted by this Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS INFRINGEMENT INDEMNIFICATION SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. TERM; TERMINATION.
8.1 Term.Subject to the termination provisions set forth in Termination for Breach Section of the General Terms Schedule, the initial term of this Schedule will be the Initial Term; and such term will automatically renew thereafter for successive Renewal Terms, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case the Agreement shall terminate at the end of the then current term. “Renewal Terms” shall be a period of one (1) year each unless a renewal Order Form defines a different Renewal Term for the applicable renewal period. The Schedule will not terminate unless and until all Software subscriptions purchased have terminated or expired.
8.2 Additional Effects or Consequences of Termination. In addition to Term and Termination provisions of the General Terms Schedule, upon any termination of this Subscription Schedule in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software and Documentation; and (b) either (i) return the Software and Documentation to Hyland, or (ii) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
9. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Brasil Ltda Exhibit A
Hyland Software Germany GmbH Exhibit B
10. CONTROLLING LANGUAGE. Hyland may make other versions of this Subscription Schedule available in other languages at this online location. This English language version of this Subscription Schedule controls over any version of the Subscription Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Subscription Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Subscription Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit A shall apply:
- The Subscription Fees Section of the Subscription Schedule shall be replaced in its entirety as follows:
Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term of this Schedule (as defined herein), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Order Form. Hyland will adjust the Subscription Fees annually on each anniversary of the Effective Date of this Agreement by the last known accumulated value of IPCA for a period of twelve (12) months at the time Hyland issues the invoice. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under this Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit B shall apply:
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential – © 2023 Hyland Software, Inc.
Effective December 8th 2022 to June 2nd 2023
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE- SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (the “Subscription Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this Subscription Schedule by reference.
DEFINED TERMS:
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software
“Cores” means physical computer processing cores or virtual Central Processing Units (vCPUs), sold in groups of four Cores. As licensed by Hyland, an initial set of four Cores allows Customer to deploy the Software on up to four physical cores, or up to four vCPUs, on a single server instance. If Customer purchases eight or more Cores, Customer may deploy the Software on physical cores or vCPUs equal to the number of Cores it has purchased, without limitation, as to the number of service instances upon which they can run.
“CPUs” means a single physical central processing unit with up to four (4) Cores on which the Software may be installed or executed. In virtualized environments, a CPU is defined as an allocation of 1 to 4 virtual Cores to a given virtual machine instance. As an example, a virtual machine with 6 virtual Cores counts as 2 CPUs.
“Delivery” means: (i) the electronic downloading of the Software onto Customer’s systems, (ii) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (iii) the delivery by Hyland to Customer of a Production Certificate for such Software by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized solution providers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported by Customer in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Initial Term” means (i) the initial term for which Customer has purchased particular products or services as set forth on the applicable Order Form for such product or service; if there is no Order Form or the Order Form does not state an initial term, the Initial Term shall be the three (3) year period that begins on the date of Hyland’s acceptance of the applicable Purchase Order or the Effective Date of the Order Form, as applicable; and (ii) with respect to any Schedule that governs the products or services purchased, shall be the Initial Term as defined in (i).
“Maintenance and Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Production Certificate” means: license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time during a maintenance period covered by this Subscription Schedule, any Software product or version of the Software licensed by Customer from Hyland under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on its end user web site Software or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site, and Customer will receive notice as a registered user of Hyland’s applicable secure end user web site.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during any maintenance period under this Subscription Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new Software or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited license to use the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to Section 1.7 below, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of Section 1.7 below
1.2 Use Restriction. The Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Certain Software products that are volume-based (which shall include the number of Cores and/or users) may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; and/or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client licenses, platforms or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the Subscription Fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software licenses purchased by Customer. In the case of Software branded by Hyland as Alfresco, Customer will not combine, call, link to, or otherwise use the Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Cores or users.
1.3 Production and Test Systems. Unless otherwise stated in an Order Form, Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted purchase order delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver a purchase order or execute an Order Form with Hyland for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the Software licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant you additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided to you by Hyland as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland's products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Software is not designed or intended for use in any situation where failure or fault of any kind of the Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not licensed to use the Software in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non- controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute or sublicense the use of the Software in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Software in connection with any High Risk Use.
1.9 Audit Rights. During the term of this Subscription Schedule and for one (1) year thereafter, upon reasonable notice to Customer, Hyland shall be permitted access to Customer’s facilities and records, during regular business hours, to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 AnyDoc. The optional AccuZip component of the OCR for AnyDoc and AnyDoc EXCHANGEit Software products contains material obtained under agreement from the United States Postal Service (USPS) and must be kept current via an update plan provided by Hyland to maintain Customer’s continued right to use. The USPS has contractually required Hyland to include “technology which automatically disables access to outdated [zip code] products.” This technology disables only the AccuZip component and is activated only if AccuZip is not updated on a regular and timely basis. Hyland regularly updates the zip code list as part of Maintenance and Support for the AccuZip module.
1.11 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
1.12 Alfresco Content Services Specific Restriction Only. If Customer purchases Alfresco Content Services (“ACS”), the following restriction shall apply: The Alfresco Content Services (ACS) includes a workflow capability along with a predetermined set of document-review and approval workflows, and a set of predetermined management-task functions. Customer may use and modify the predetermined workflows and management tasks that are provided with the ACS subscription. However, Customer may not use the workflow software to design, create or run other types of workflows, business processes and/or management tasks. A separate subscription for Alfresco Process Services (APS) software is required for any such uses.
1.13 Nuxeo Software. If Customer is purchasing Software branded by Hyland as Nuxeo, Nuxeo Software is subject to additional licensing terms, which are available at https://legal.hyland.com/Customer-Legal-Center#nuxeo-subscription-terms .
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule (as defined in this Subscription Schedule or in an applicable Order Form), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Purchase Table Schedule or Order Form. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software on a pro rata basis upon execution by the parties of a new Order Form or Hyland’s acceptance of the purchase order for such additional Software. Unless otherwise stated on an applicable Order Form, such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an applicable Order Form for an Add-On Service. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to an additional Schedule or terms added to an Order Form.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software and Add-On Services, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software and Add-On Services, the U.S. Government hereby agrees that the Software and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software and Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software and Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 MAINTENANCE AND SUPPORT TERMS. Except with respect to Retired Software, and notwithstanding anything to the contrary, Hyland will provide Maintenance and Support in accordance with the Maintenance and Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, to the extent provided by Hyland through Hyland’s secure end user website , Customer may call for Level 1 or Level 2 Severity Levels. In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error, which shall include, to the extent applicable, functioning test code that reproduces and isolates each issue. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Maintenance and Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Maintenance and Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide all Upgrades and Enhancements, if and when released during the term of this Subscription Schedule. Upgrades and Enhancements are not available for Retired Software.
5.2 EXCLUSIONS.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 CERTAIN OTHER RESPONSIBILITIES OF CUSTOMER.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 PROFESSIONAL SERVICES FOR PROJECTS NOT COVERED BY TECHNICAL SUPPORT SERVICES OR ERROR CORRECTION SERVICES. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 IMPLEMENTATION OF UPGRADES AND ENHANCEMENTS TO REGULATED PRODUCTS. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
5.6 TECHNICAL SUPPORT CONTACTS. Hyland will provide Maintenance and Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
6.1 Software Warranty. Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer's computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation, or (d) to the extent the Software is Retired Software.
6.2 Remedy. Hyland’s sole obligation, and Customer's sole and exclusive remedy for any non-conformities to the express limited warranties under Section 6.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 8.2 of this Subscription Schedule, Hyland will provide a refund to Customer of the "unused portion of the prepaid Subscription Fees" (as defined below) paid by Customer and attributable to the non-conforming component. The "unused portion of prepaid Subscription Fees" shall mean an amount equal to the total Subscription Fees paid by Customer for the non-conforming portion of the Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 7.1(d), Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the total Subscription Fees paid by Customer for the infringing portion of the Software for the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in Section 7.1 that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized solution providers specifically retained by Hyland to provide such modification or addition; (d) use of non-current versions of the Software when Hyland has made newer, non-infringing versions available to the Customer; or (e) the Customer’s business methods or processes.
7.4 THIS SECTION 7 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. TERM; TERMINATION.
8.1 TERM. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule, the initial term of this Subscription Schedule will be the Initial Term; and such term will automatically renew thereafter for successive Renewal Terms, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this Subscription Schedule shall terminate at the end of the then current term. “Renewal Term” shall mean a renewal term of one (1) year each unless a renewal Order Form defines a different Renewal Term for the applicable renewal term. This Schedule will not terminate unless and until all Software subscriptions listed in a Purchase Table or Order Form have terminated or expired.
8.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, upon any termination of this Subscription Schedule in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software and Documentation; and (b) either (1) return the Software and Documentation to Hyland, or (2) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
Effective April 14th 2022 to December 8th 2022
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Copyright Ó 2021 Hyland Software, Inc.
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE- SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (the “Subscription Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this Subscription Schedule by reference.
DEFINED TERMS:
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Delivery” means: (i) the electronic downloading of the Software onto Customer’s systems, (ii) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (iii) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized solution providers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported by Customer in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Maintenance and Support” means for Software, (i) Error Correction Services; (ii) Technical Support Services; and (iii) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Maintenance and Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Production Certificate” means: license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time during a maintenance period covered by this Subscription Schedule, any Software product or version of the Software licensed by Customer from Hyland under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on its end user web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site, and Customer will receive notice as a registered user of Hyland’s applicable secure end user web site.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during any maintenance period under this Subscription Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to Section 1.7 below, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of Section 1.7 below
1.2 Use Restriction. Each module of the Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Software products that are volume-based may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; and/or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client modules or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the Subscription Fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software Client licenses purchased by Customer.
1.3 Production and Test Systems. Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration modules of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted purchase order delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver a purchase order for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant you additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided to you by Hyland as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland's products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to, users.onbase.com, teamonbase.com, training.onbase.com, demo.onbase.com, and Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Software is not designed or intended for use in any situation where failure or fault of any kind of the Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not licensed to use the Software in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non- controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute or sublicense the use of the Software in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Software in connection with any High Risk Use.
1.9 Audit Rights. Upon reasonable notice to Customer, Hyland shall be permitted access to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 AnyDoc. The optional AccuZip component of the OCR for AnyDoc and AnyDoc EXCHANGEit Software products contains material obtained under agreement from the United States Postal Service (USPS) and must be kept current via an update plan provided by Hyland to maintain Customer’s continued right to use. The USPS has contractually required Hyland to include “technology which automatically disables access to outdated [zip code] products.” This technology disables only the AccuZip component and is activated only if AccuZip is not updated on a regular and timely basis. Hyland regularly updates the zip code list as part of Maintenance and Support for the AccuZip module.
1.11 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule, Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Purchase Table Schedule. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to an additional Schedule.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software and Add-On Services, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software and Add-On Services, the U.S. Government hereby agrees that the Software and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software and Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software and Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 MAINTENANCE AND SUPPORT TERMS. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Maintenance and Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Maintenance and Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Maintenance and Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Subscription Schedule. Upgrades and Enhancements are not available for Retired Software.
5.2 EXCLUSIONS.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 CERTAIN OTHER RESPONSIBILITIES OF CUSTOMER.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 PROFESSIONAL SERVICES FOR PROJECTS NOT COVERED BY TECHNICAL SUPPORT SERVICES OR ERROR CORRECTION SERVICES. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 IMPLEMENTATION OF UPGRADES AND ENHANCEMENTS TO REGULATED PRODUCTS. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
6. LIMITED WARRANTY FOR SOFTWARE
6.1 Software Warranty. Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer's computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation, or (d) to the extent the Software is Retired Software.
6.2 Remedy. Hyland’s sole obligation, and Customer's sole and exclusive remedy for any non-conformities to the express limited warranties under Section 6.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 8.2 of this Subscription Schedule, Hyland will provide a refund to Customer of the "unused portion of the prepaid Subscription Fees" (as defined below) paid by Customer and attributable to the non-conforming component. The "unused portion of prepaid Subscription Fees" shall mean an amount equal to the total Subscription Fees paid by Customer for the non-conforming portion of the Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 7.1(d), Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the total Subscription Fees paid by Customer for the infringing portion of the Software for the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in Section 7.1 that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized solution providers specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS SECTION 7 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. TERM; TERMINATION.
8.1 TERM. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule, the initial term of this Subscription Schedule will be the Initial Term; and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this Subscription Schedule shall terminate at the end of the then current term.
8.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, upon any termination of this Subscription Schedule in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software and Documentation; and (b) either (1) return the Software and Documentation to Hyland, or (2) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
Effective March 14th 2022 to April 14th 2022
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE- SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (the “Subscription Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this Subscription Schedule by reference.
DEFINED TERMS:
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Delivery” means: (i) the electronic downloading of the Software onto Customer’s systems, (ii) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (iii) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized solution providers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported by Customer in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Maintenance and Support” means for Software, (i) Error Correction Services; (ii) Technical Support Services; and (iii) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Maintenance and Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Production Certificate” means: license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time during a maintenance period covered by this Subscription Schedule, any Software product or version of the Software licensed by Customer from Hyland under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on its end user web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site, and Customer will receive notice as a registered user of Hyland’s applicable secure end user web site.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during any maintenance period under this Subscription Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to Section 1.7 below, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of Section 1.7 below
1.2 Use Restriction. Each module of the Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Software products that are volume-based may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; and/or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client modules or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the Subscription Fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software Client licenses purchased by Customer.
1.3 Production and Test Systems. Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration modules of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted purchase order delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver a purchase order for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant you additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided to you by Hyland as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland's products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to, users.onbase.com, teamonbase.com, training.onbase.com, demo.onbase.com, and Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Software is not designed or intended for use in any situation where failure or fault of any kind of the Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not licensed to use the Software in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non- controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute or sublicense the use of the Software in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Software in connection with any High Risk Use.
1.9 Audit Rights. Upon reasonable notice to Customer, Hyland shall be permitted access to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 AnyDoc. The optional AccuZip component of the OCR for AnyDoc and AnyDoc EXCHANGEit Software products contains material obtained under agreement from the United States Postal Service (USPS) and must be kept current via an update plan provided by Hyland to maintain Customer’s continued right to use. The USPS has contractually required Hyland to include “technology which automatically disables access to outdated [zip code] products.” This technology disables only the AccuZip component and is activated only if AccuZip is not updated on a regular and timely basis. Hyland regularly updates the zip code list as part of Maintenance and Support for the AccuZip module.
1.11 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule, Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Purchase Table Schedule. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees at least sixty (60) days prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to an additional Schedule.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software and Add-On Services, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software and Add-On Services, the U.S. Government hereby agrees that the Software and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software and Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software and Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 MAINTENANCE AND SUPPORT TERMS. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Maintenance and Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Maintenance and Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Maintenance and Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Subscription Schedule. Upgrades and Enhancements are not available for Retired Software.
5.2 EXCLUSIONS.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 CERTAIN OTHER RESPONSIBILITIES OF CUSTOMER.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 PROFESSIONAL SERVICES FOR PROJECTS NOT COVERED BY TECHNICAL SUPPORT SERVICES OR ERROR CORRECTION SERVICES. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 IMPLEMENTATION OF UPGRADES AND ENHANCEMENTS TO REGULATED PRODUCTS. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
6. LIMITED WARRANTY FOR SOFTWARE
6.1 Software Warranty. Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer's computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation, or (d) to the extent the Software is Retired Software.
6.2 Remedy. Hyland’s sole obligation, and Customer's sole and exclusive remedy for any non-conformities to the express limited warranties under Section 6.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 8.2 of this Subscription Schedule, Hyland will provide a refund to Customer of the "unused portion of the prepaid Subscription Fees" (as defined below) paid by Customer and attributable to the non-conforming component. The "unused portion of prepaid Subscription Fees" shall mean an amount equal to the total Subscription Fees paid by Customer for the non-conforming portion of the Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 7.1(d), Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the total Subscription Fees paid by Customer for the infringing portion of the Software for the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in Section 7.1 that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized solution providers specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS SECTION 7 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. TERM; TERMINATION.
8.1 TERM. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule, the initial term of this Subscription Schedule will be the Initial Term; and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this Subscription Schedule shall terminate at the end of the then current term.
8.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, upon any termination of this Subscription Schedule in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software and Documentation; and (b) either (1) return the Software and Documentation to Hyland, or (2) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
Effective September 27th 2021 to March 14th 2022
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE- SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (the “Subscription Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this Subscription Schedule by reference.
DEFINED TERMS:
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Delivery” means: (i) the electronic downloading of the Software onto Customer’s systems, (ii) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (iii) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized solution providers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported by Customer in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Maintenance and Support” means for Software, (i) Error Correction Services; (ii) Technical Support Services; and (iii) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Maintenance and Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Production Certificate” means: license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time during a maintenance period covered by this Subscription Schedule, any Software product or version of the Software licensed by Customer from Hyland under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on its end user web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site, and Customer will receive notice as a registered user of Hyland’s applicable secure end user web site.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during any maintenance period under this Subscription Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to Section 1.7 below, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of Section 1.7 below
1.2 Use Restriction. Each module of the Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Software products that are volume-based may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; and/or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client modules or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the Subscription Fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software Client licenses purchased by Customer.
1.3 Production and Test Systems. Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration modules of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted purchase order delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver a purchase order for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant you additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided to you by Hyland as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland's products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to, users.onbase.com, teamonbase.com, training.onbase.com, demo.onbase.com, and Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Software is not designed or intended for use in any situation where failure or fault of any kind of the Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not licensed to use the Software in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non- controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute or sublicense the use of the Software in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Software in connection with any High Risk Use.
1.9 Audit Rights. Upon reasonable notice to Customer, Hyland shall be permitted access to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 AnyDoc. The optional AccuZip component of the OCR for AnyDoc and AnyDoc EXCHANGEit Software products contains material obtained under agreement from the United States Postal Service (USPS) and must be kept current via an update plan provided by Hyland to maintain Customer’s continued right to use. The USPS has contractually required Hyland to include “technology which automatically disables access to outdated [zip code] products.” This technology disables only the AccuZip component and is activated only if AccuZip is not updated on a regular and timely basis. Hyland regularly updates the zip code list as part of Maintenance and Support for the AccuZip module.
1.11 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule, Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Purchase Table Schedule. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. For any subsequent years, Hyland will invoice Customer for Subscription Fees at least sixty (60) days prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms Schedule. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to an additional Schedule.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software and Add-On Services, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software and Add-On Services, the U.S. Government hereby agrees that the Software and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software and Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software and Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 MAINTENANCE AND SUPPORT TERMS. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Maintenance and Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Maintenance and Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Maintenance and Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Subscription Schedule. Upgrades and Enhancements are not available for Retired Software.
5.2 EXCLUSIONS.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 CERTAIN OTHER RESPONSIBILITIES OF CUSTOMER.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 PROFESSIONAL SERVICES FOR PROJECTS NOT COVERED BY TECHNICAL SUPPORT SERVICES OR ERROR CORRECTION SERVICES. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 IMPLEMENTATION OF UPGRADES AND ENHANCEMENTS TO REGULATED PRODUCTS. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
6. LIMITED WARRANTY FOR SOFTWARE
6.1 Software Warranty. Hyland warrants to Customer that during the term of this Subscription Schedule the Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Software if (a) any component of the Software has been modified, misused or abused by Customer or a third party, (b) any such non-conformity arises from or is related to problems within or impacting Customer's computing environment, including any Customer third party software applications, hardware, network or internet connectivity, (c) if the Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation, or (d) to the extent the Software is Retired Software.
6.2 Remedy. Hyland’s sole and exclusive remedy for any non-conformities to the express limited warranties under Section 6.1 shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this Subscription Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under Section 8.2 of this Subscription Schedule, Hyland will provide a refund to Customer of the "unused portion of the prepaid Subscription Fees" (as defined below) paid by Customer and attributable to the non-conforming component. The "unused portion of prepaid Subscription Fees" shall mean an amount equal to the total Subscription Fees paid by Customer for the non-conforming portion of the Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 7.1(d), Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the total Subscription Fees paid by Customer for the infringing portion of the Software for the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in Section 7.1 that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized solution providers specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS SECTION 7 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. TERM; TERMINATION.
8.1 TERM. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule, the initial term of this Subscription Schedule will be the Initial Term; and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this Subscription Schedule shall terminate at the end of the then current term.
8.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, upon any termination of this Subscription Schedule in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software and Documentation; and (b) either (1) return the Software and Documentation to Hyland, or (2) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
Effective May 17th 2021 to September 27th 2021
DownloadTable of Contents
SOFTWARE LICENSE AND MAINTENANCE SCHEDULE- SUBSCRIPTION
(Subscription License for Software, includes Maintenance and Support)
This Software License and Maintenance Schedule – Subscription (the “Subscription Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this Subscription Schedule by reference.
DEFINED TERMS:
All capitalized terms used in this Subscription Schedule shall have the meaning ascribed them in this Subscription Schedule or, if not defined in this Subscription Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Subscription Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Delivery” means: (i) the electronic downloading of the Software onto Customer’s systems, (ii) the Software being made available by Hyland to Customer for electronic download onto Customer’s systems; or (iii) the delivery by Hyland to Customer of a Production Certificate for such Software module(s) by Hyland either shipping (physically or electronically) the Production Certificate to Customer or making the Production Certificate available for electronic download by Customer (including through one of Hyland’s authorized solution providers).
“Documentation” means: (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported by Customer in accordance with the Agreement and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Error Correction Services” means Hyland’s reasonable efforts to correct an Error, which may be effected by a reasonable workaround.
“Maintenance and Support” means for Software, (i) Error Correction Services; (ii) Technical Support Services; and (iii) the availability of Upgrades and Enhancements in accordance with this Subscription Schedule.
“Maintenance and Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Production Certificate” means: license codes, a license certificate, or an IFM file issued by Hyland and necessary for Customer to activate Software for Customer’s production use.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Subscription Schedule and for Maintenance and Support for such Software, and payable by Customer to Hyland.
“Retired Software” means, at any particular time during a maintenance period covered by this Subscription Schedule, any Software product or version of the Software licensed by Customer from Hyland under the Agreement which is identified as being retired on Hyland’s applicable secure end user web site. Hyland will specify on its end user web site Software modules or versions which become Retired Software. The effective date of such change will be twelve (12) months from the date Hyland initially posts the status change on its end user web site, and Customer will receive notice as a registered user of Hyland’s applicable secure end user web site.
“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during any maintenance period under this Subscription Schedule to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1. SOFTWARE LICENSE.
1.1 Grant of License. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms), limited license to the Software, in machine-readable object code form only and associated Documentation; in each case solely for use:
(a) by Customer internally, and only for storing, processing and accessing Customer’s own data; and
(b) subject to Section 1.7 below, by a third party contractor retained by Customer as a provider of services to Customer (“Contractor”), but only by the Contractor for capturing, storing, processing and accessing Customer’s own data in fulfillment of the Contractor’s contractual obligations as a service provider to Customer.
The Software and associated Documentation are licensed for use by a single organization and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software or associated Documentation in any manner not expressly permitted by the Agreement. Software subject to a regulatory control may only be installed in the country identified as the end user location in the purchase order. The Software may be located and hosted on computer servers owned and controlled by a third party. Such third party hosting provider shall be considered a Contractor, and subject to the requirements of Section 1.7 below
1.2 Use Restriction. Each module of the Software is licensed for a specific type of use, such as concurrently or on a specified workstation or by a specified individual and the Software may control such use. Software products that are volume-based may: (i) no longer function if applicable volume limits have been exceeded; (ii) require Customer to pay additional fees based on Customer’s volume usage; and/or (iii) include functionality which monitors or tracks Customer usage and reports that usage. Customer acknowledges and agrees that additional fees may apply based on Customer's volume usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Use of software or hardware that reduces the number of users directly accessing or utilizing the Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware. Customer is prohibited from using any software other than the Software Client modules or a Software application programming interface (API) to access the Software or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the Subscription Fees with respect to such access. Customer further agrees that the Software shall not be copied and installed on additional servers unless Customer has purchased a license therefore, and the number of users of the Software shall not exceed the number of users permitted by the Software Client licenses purchased by Customer.
1.3 Production and Test Systems. Customer shall be entitled to use one (1) production copy of the Software licensed and one (1) additional copy of the production environment licensed Software for customary remote disaster recovery purposes which may not be used as a production system concurrently with the operation of any other copy of the Software in a production environment. In addition, Customer shall also be entitled to license a reasonable number of additional copies of the production environment licensed Software to be used exclusively in a non-production environment and solely for the purposes of experimenting and testing the Software, developing integrations between the Software and other applications that integrate to the Software solely using integration modules of the Software licensed by Customer under the Agreement, and training Customer’s employees on the Software (“Test Systems”). Customer may be required to provide to Hyland certain information relating to Customer’s intended use of such Test Systems such as the manufacturer, model number, serial number and installation site. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Test Systems. Customer’s sole recourse in the event of any dissatisfaction with any Software in any non-production system is to stop using such Software and return it to Hyland, provided that, to the extent that Customer is using the Test System for the purposes of testing an Upgrade or Enhancement of the Software prior to implementing the same in Customer’s production environment, then Customer may contact Hyland for the provision of Maintenance and Support as described in this Subscription Schedule. Customer shall not make any copies of the Software not specifically authorized by this Section 1.3.
1.4 Evaluation Software. From time to time Customer may elect to evaluate certain Software modules (“Evaluation Software”) for the purpose of determining whether or not to purchase a production license of such Evaluation Software. Evaluation Software is licensed for Customer’s use in a non-production environment. Notwithstanding anything to the contrary, as to any Evaluation Software, the Agreement and the limited license granted hereby will terminate on the earliest of: (a) last day of the evaluation period specified in the accepted purchase order delivered for such Evaluation Software; or (b) immediately upon the delivery of written notice to such effect by Hyland to Customer. Upon expiration or other termination of such period, Customer immediately shall either (y) discontinue any and all of use of the Evaluation Software and related Documentation and remove the Evaluation Software; or (z) deliver a purchase order for purchase of such Evaluation Software.
1.5 Third Party Licenses. The Software may be bundled with software owned by third parties, including but not limited to those manufacturers listed in the Help About screen of the Software. Such third party software is licensed solely for use within the Software and is not to be used on a stand-alone basis. Notwithstanding the above, Customer acknowledges that, depending on the modules licensed, the Software may include open source software governed by an open source license, in which case the open source license (a copy of which is provided in the Software) may grant you additional rights to such open source software. Additionally, in the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s user in the software, and the Agreement will not govern such use.
1.6 Integration Code. If applicable, Software also includes all adapters or connectors created by Hyland and provided to you by Hyland as part of an integration between the Software and a third party line of business application (“Integration Code”). Software also includes any desktop host or other content services software provided by Hyland and downloaded on a user's computer used to extend functionality in Hyland's products. Such Integration Code and desktop host may only be used in combination with other Software and in accordance with the terms of the Agreement.
1.7 Contractor Use Agreement. Customer agrees that if it desires to allow a Contractor to do any of the following:
(a) make use of the Software configuration tools, Software administrative tools or any of the Software’s application programming interfaces (“APIs”);
(b) make use of any training materials or attend any training courses, either online or in person, in either case related to the Software; or
(c) access any of Hyland’s secure websites (including, but not limited to, users.onbase.com, teamonbase.com, training.onbase.com, demo.onbase.com, and Hyland.com/Community), either through Contractor’s use of Customer’s own log-in credentials or through credentials received directly or indirectly by Contractor;
then, Customer must cause such Contractor to execute a use agreement in a form available for download at Hyland’s Community website (“Contractor Use Agreement”). Customer understands and agrees that: (x) Customer may not allow a Contractor to do any of the foregoing if such Contractor has not signed a Contractor Use Agreement, and (y) Contractors may use the Software only in compliance with the terms of the Agreement, and (z) Customer is responsible for such compliance by all Contractors that do not execute a Contractor Use Agreement. Customer agrees that it shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Contractor that does not sign a Contractor Use Agreement.
1.8 No High Risk Use. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. The Software is not designed or intended for use in any situation where failure or fault of any kind of the Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Customer is not licensed to use the Software in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non- controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees not to use, distribute or sublicense the use of the Software in, or in connection with, any High Risk Use." Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s use of the Software in connection with any High Risk Use.
1.9 Audit Rights. Upon reasonable notice to Customer, Hyland shall be permitted access to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the licensing and pricing terms the Agreement, including, where applicable, to measure Customer’s volume usage. Additionally, if requested by Hyland in connection with Software licensed on a volume basis, Customer shall provide reports that show Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audit. Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Hyland’s prior written approval, and that Customer has not relied on the future availability of any programs or services in entering into the Agreement.
1.10 AnyDoc. The optional AccuZip component of the OCR for AnyDoc and AnyDoc EXCHANGEit Software products contains material obtained under agreement from the United States Postal Service (USPS) and must be kept current via an update plan provided by Hyland to maintain Customer’s continued right to use. The USPS has contractually required Hyland to include “technology which automatically disables access to outdated [zip code] products.” This technology disables only the AccuZip component and is activated only if AccuZip is not updated on a regular and timely basis. Hyland regularly updates the zip code list as part of Maintenance and Support for the AccuZip module.
1.11 The Software may contain functionality that allows Customer to access, link or integrate the Software with Customer’s applications or applications or services provided by third parties. Hyland has no responsibility for such applications or services, websites or content and does not endorse any third party web sites, applications or services that may be linked or integrated through the Software; any activities engaged in by Customer with such third parties is solely between Customer and such third party.
2. SUBSCRIPTION FEES. Customer shall pay Subscription Fees to Hyland for the Software licensed hereunder in such amounts as are invoiced by Hyland; provided, that during the Initial Term of this Subscription Schedule (as defined in Section 8 of this Subscription Schedule), Customer shall pay Subscription Fees to Hyland for the initial Software licensed hereunder in accordance with the applicable Purchase Table Schedule. Following expiration of the Initial Term of this Subscription Schedule, Hyland may increase the Subscription Fees for the Software for any renewal period by up to ten percent (10%) of the previous year’s Subscription Fees. Hyland will invoice Customer on or after the Effective Date for Subscription Fees for the first year of the Initial Term. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. For any subsequent years, Hyland will invoice Customer for Subscription Fees at least sixty (60) days prior to the beginning of such year, and such invoices shall be due and payable by Customer to Hyland on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Hyland will invoice Customer for Subscription Fees for such additional Software modules on a pro rata basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer to Hyland in accordance with the General Terms. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3. ADD-ON SERVICES. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Some Add-On Services may be priced on a volume basis, for which Add-On Services fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to an additional Schedule.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Software and Add-On Services, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the Delivery of the Software and Add-On Services, the U.S. Government hereby agrees that the Software and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Software and Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Software and Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. MAINTENANCE AND SUPPORT FOR SOFTWARE AND RETIRED SOFTWARE.
5.1 MAINTENANCE AND SUPPORT TERMS. Except with respect to Retired Software, Hyland will provide Maintenance and Support in accordance with the Maintenance and Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of any Software, including assistance and advice related to the operation of the Software. Technical Support Services are not available for Retired Software.
(b) Error Correction Services. With respect to any Errors in the Software which are reported by Customer and which are confirmed by Hyland, in the exercise of its reasonable judgment, Hyland will use its reasonable efforts to correct the Error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported Errors after receipt of a proper report of such suspected Error from Customer. Hyland may elect to correct the Error in the current available or in the next available commercially released version of the Software and the Resolution may require the Customer to implement an Upgrade and Enhancement to obtain the correction. Error Correction Services are not available for Retired Software.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. In requesting Technical Support Services and Error Correction Services, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for Level 1 or Level 2 Severity Levels (support numbers are available through Hyland’s secure end user website). In the case of reporting an Error, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all Technical Support Services requests and Error Correction Services requests in accordance with the Maintenance and Support Prioritization Attachment. With respect to Errors: (a) Hyland will respond based on the confirmed severity level of an Error; (b) Hyland may reclassify Errors as it learns information about such Errors during the resolution process; and (c) Hyland’s obligation for a reported Error concludes upon delivery of a Resolution in accordance with the Maintenance and Support Prioritization Attachment.
(d) Upgrades and Enhancements. Hyland will provide, in accordance with Hyland’s then current policies, as set forth from time to time on Hyland’s secure end user web site (currently www.hyland.com/community), all Upgrades and Enhancements, if and when released during the term of this Subscription Schedule. Upgrades and Enhancements are not available for Retired Software.
5.2 EXCLUSIONS.
(a) Generally. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support under the Agreement: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error if Hyland has previously provided corrections for such Error which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
(b) Work Products. Maintenance and Support is not provided for any Work Products (as defined in the Professional Services Schedule); however, if Customer desires Maintenance and Support regarding the operation or use of such Work Products, Customer may request such Maintenance and Support and the parties may agree to enter into a Services Proposal for such Maintenance and Support in accordance with the terms of the Professional Services Schedule.
(c) Excluded Software and Hardware. This Subscription Schedule does not govern, and Hyland shall not be responsible for, the maintenance or support of any software other than Software, or for any hardware or equipment of any kind or nature, whether or not obtained by Customer from Hyland.
5.3 CERTAIN OTHER RESPONSIBILITIES OF CUSTOMER.
(a) Operation of the Software and Related Systems. Customer acknowledges and agrees that it is solely responsible for the operation, configuration, supervision, management and control of the Software and all related hardware and software (including the database software). Customer is solely responsible for: obtaining or providing training for its personnel; taking appropriate measures to isolate and backup or otherwise archive its computer systems, programs, data or files; and instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use.
(b) Access to Premises and Systems. Customer shall make available reasonable access and use of Customer’s premises, and online access to Customer’s computer hardware, peripherals, Software and other software as Hyland deems necessary to diagnose and correct any Errors or to otherwise provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland.
5.4 PROFESSIONAL SERVICES FOR PROJECTS NOT COVERED BY TECHNICAL SUPPORT SERVICES OR ERROR CORRECTION SERVICES. If Customer requests Professional Services which are outside the scope of Technical Support Services or Error Correction Services, Customer agrees that such services shall not be covered by this Section 5 and such services only shall be engaged pursuant to a Services Proposal under an applicable Professional Services Schedule.
5.5 IMPLEMENTATION OF UPGRADES AND ENHANCEMENTS TO REGULATED PRODUCTS. Customer acknowledges and agrees that for regulatory compliance purposes, Customer may be required to engage Hyland under a Services Proposal to implement Upgrades and Enhancements to a regulated product. If Hyland offers a self-service option for implementing Upgrades and Enhancements to a regulated product, and the Customer chooses this option, Customer agrees to comply with the training, reporting, and documentation requirements established by Hyland to ensure that the implementation is performed and documented as required by applicable regulations.
6. LIMITED WARRANTY FOR SOFTWARE
6.1 Software Warranty. For a period of sixty (60) days from and including the date a Software module listed in the Purchase Table Schedule identifying the Software licenses initially purchased by Customer under this Subscription Schedule, has been Delivered to Customer, and for a period of sixty (60) days from and including the date any other Software module has been Delivered to Customer, Hyland warrants to Customer that such Software module, when properly installed and properly used, will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to: (a) any Retired Software modules; or (b) any Software module that has been (i) modified by Customer or a third party, (ii) used in combination with equipment or software other than that which is consistent with the Documentation, or (iii) misused or abused.
6.2 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Sections 6.1 shall be as follows: provided that, within the applicable period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Software module, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Software module is not practicable, then terminate the Agreement with respect to the non-conforming Software module, in which event, upon compliance by Customer with its obligations under Section 8.2 of this Subscription Schedule, Hyland will refund any portion of the Subscription Fees paid prior to the time of such termination with respect to such Software.
7. INFRINGEMENT INDEMNIFICATION.
7.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, or to replace the relevant portions of the Software or with other equivalent, non-infringing portions.
7.2 Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 7.1(d), Hyland shall remove the infringing portion of the Software and refund to Customer the “unused portion of prepaid Subscription Fees” (as defined below) paid by Customer, with respect to the infringing portion of the Software. For these purposes, the “unused portion of the prepaid Subscription Fees” shall mean an amount equal to the total Subscription Fees paid by Customer for the infringing portion of the Software for the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
7.3 Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to indemnify any claims made against Customer and otherwise described in Section 7.1 that arise from: (a) use of the Software by Customer other than as expressly permitted by the Agreement; (b) the combination of the Software with any product not furnished by Hyland to Customer; (c) the modification or addition to of the Software other than by Hyland or any of its authorized solution providers specifically retained by Hyland to provide such modification or addition; or (d) the Customer’s business methods or processes.
7.4 THIS SECTION 7 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE.
8. TERM; TERMINATION.
8.1 TERM. Subject to the termination provisions set forth in Section 1.2 of the General Terms Schedule, the initial term of this Subscription Schedule will be the three (3) year period that commences on the Effective Date (the “Initial Term”); and such term will automatically renew thereafter for successive terms of one (1) year each, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case this Subscription Schedule shall terminate at the end of the then current term.
8.2 Additional Effects or Consequences of Termination. In addition to Section 1.3 of the General Terms Schedule, upon any termination of this Subscription Schedule in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software and Documentation; and (b) either (1) return the Software and Documentation to Hyland, or (2) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
SaaS Agreement - AWS
Effective June 9th 2021
DownloadTable of Contents
HYLAND SaaS AGREEMENT
This SaaS Agreement (“Agreement”) is made between Hyland Software, Inc. (“Hyland”), 28500 Clemens Road, Westlake, Ohio 44145 USA, an Ohio corporation, and the entity (“Customer”) that has ordered the Hyland Cloud Service through the AWS Marketplace. This Agreement is effective on the date Customer first places an order for Hyland Cloud Service through the AWS Marketplace (the “Effective Date”). Unless Hyland and Customer have executed and delivered another Hyland SaaS Agreement or document of similar import with respect to the Hyland Cloud Service, by ordering the Hyland Cloud Service through the AWS Marketplace, Customer agrees to be bound to the terms of this Agreement. If Hyland and Customer have executed and delivered another Hyland SaaS Agreement or document of similar import with respect to the Software and the Hyland Cloud Service shall have no force or effect and the terms and conditions of such other Hyland SaaS Agreement or document of similar import shall govern.
REPRESENTATION AND WARRANTY REGARDING AUTHORITY: BY ORDERING THE HYLAND CLOUD SERVICE THROUGH THE AWS MARKETPLACE, CUSTOMER REPRESENTS AND WARRANTS THAT THE PERSON THAT HAS PLACED SUCH ORDER HAS ALL REQUISITE POWER AND AUTHORITY, FOR AND ON BEHALF OF CUSTOMER, TO TAKE SUCH ACTION AND TO BIND CUSTOMER TO SUCH ACCEPTANCE AND TO THE TERMS AND CONDITIONS OF THIS HYLAND SAAS AGREEMENT.
The following schedules are incorporated into this Agreement by reference:
☒General Terms Schedule
☒ Software-as-a-Service Schedule, available at: https://legal.hyland.com/Customer-Legal-Center#contracts-software-as-a-service-schedule
INITIAL COMPONENTS OF HYLAND CLOUD SERVICE |
Initial Service Class Package: Double Platinum Initial data storage allocation: .5 terabytes Initial data center location: United States |
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) includes terms that will apply to any product license or service you purchase from Hyland under other Schedules that are incorporated into this Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. This Agreement shall have a term commencing on the Effective Date, and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate this Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of this Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of this Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of this Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under this Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of this Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of this Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of this Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 8.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when Customer places its initial order for the Hyland Cloud Service through the AWS Marketplace, the parties will treat this Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. Customer will be invoiced by AWS as a paying agent for Hyland for purchases made on the AWS Marketplace.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under this Agreement, except as otherwise provided in this Agreement, Customer shall pay in full each invoice issued hereunder net thirty (30) days from the date of Customer’s receipt of such invoice.
2.4 Taxes and Governmental Charges. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland or AWS all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland or AWS, as applicable, within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. If, prior to the due date for payment under any invoice, Customer notifies Hyland in writing that it disputes all or any portion of an amount invoiced, both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 8.1 of these General Terms to seek resolution of the dispute.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except those amounts properly disputed in accordance with Section 2.5 of these General Terms) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of any default by Customer in the payment of any amounts invoiced hereunder (except with respect to those amounts on invoices the parties are attempting to resolve under Section 2.5 of these General Terms), which default continues unremedied for at least thirty (30) calendar days after the due date of such payment, Hyland shall have the right to suspend or cease the provision of any services under this Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under this Agreement shall be determined and invoiced in, and all payments required to be made in connection with this Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently. https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training.
3. CONFIDENTIAL INFORMATION.
“Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under this Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership.Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in this Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THIS AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in this Agreement is authorized unless it is set forth in writing, references this Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND (THROUGH AWS) BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF CUSTOMER’S SERVICES PROVIDED IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to this Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under this Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
8. GENERAL PROVISIONS.
8.1 Governing Law; Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
8.2 Interpretation. The headings used in this Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to this Agreement.
8.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
8.4 Integration. This Agreement, including any and all exhibits and schedules referred to herein, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. This Agreement may only be modified by a written document signed by duly authorized representatives of the parties. This Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. This Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
8.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under this Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified below or (B) email to the address below or such other email address provided by Customer, without receipt of a notice of failed delivery.
Hyland:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
Customer:
Name and address provided by Customer through AWS Marketplace
8.6 Binding Effect; No Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of this Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this Section 8.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by this Agreement.
8.7 Severability. In the event that any term or provision of this Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of this Agreement.
8.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
8.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
8.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
8.11 Injunctive Relief. The parties to this Agreement recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
8.12 Non-Solicitation; Non-Hire. During the term of this Agreement and for one (1) year after the expiration or termination of this Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with this Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 8.12(a). The parties agree that this provision survives the termination of this Agreement.
8.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of this Agreement, the scope of the relationship and the products or services established under this Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under this Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of this Agreement, in any advertising or publicity release or promotional literature.
8.14 Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
8.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with this Agreement and the transactions contemplated hereby.
8.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
9. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement (including any Services Proposal).
“Purchase Table Schedule” means, for orders placed on the AWS Marketplace, the information displayed within the Marketplace describing the fees, software or services ordered by Customer through the AWS Marketplace, as well as the information set forth in the Initial Components of Hyland Cloud Service table of this Agreement.
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to this Agreement; Software does not include ShareBase.
Hyland's Compliance and Due Diligence Form
Effective August 24th 2021
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Table of Contents
Effective August 6th 2021 to August 24th 2021
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Effective July 7th 2021 to August 6th 2021
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- Please provide your company’s business name, primary business address, form of business organization (corporation, LLC, etc.) and indicate the number of years your company has conducted business activities: Click here to enter text.
- List each person or legal entity (including a trust) which individually (or collectively with other related or commonly owned or controlled persons or legal entities) is the record or beneficial owner of 5% or more of the outstanding ownership interests of your company, specifying their percentages of ownership. If your company does not have any 5% or more owners, please answer “None” or “N/A.” If your company has a legal entity, or group of commonly owned or controlled legal entities, which owns more than 50% of such outstanding ownership interests (a “Parent Company”), then please include all of the information required in #1 above for your Parent Company: Click here to enter text.
- List the names and titles of all officers and directors (or comparable) of your company and of any Parent Company: Click here to enter text.
- Does your company own of record or beneficially a controlling interest in any other company (a “Subsidiary”), directly or through one or more other companies (other than investments in less than 5% of the outstanding ownership interests of any publicly traded company)? If yes, will that company have any rights or obligations under any agreement with Hyland related to our potential business relationship? If yes to both of the above, please provide the information requested in #1 and #3 above for each Subsidiary. If no to either of the above, please answer “None” or “N/A”: Click here to enter text.
- Please provide the name, position and email address for:
- Please provide the company names and individual contacts for at least 3 businesses with which you currently conduct business that we may contact as business references for your company (names, addresses and primary contact information): Click here to enter text.
- Please list your company’s primary banking institution (business name, address and contact information to verify relationship): Click here to enter text.
- Will your company retain any subcontractors, consultants, agents or representatives specifically to conduct activities with prospective customers, customers or other third parties in connection with your business relationship with Hyland (this does not include third parties that you retain on a temporary or contracted basis in connection with your business operations generally, including those operations entirely unrelated to Hyland)? If yes, please identify the individual(s) or entity(ies) and describe their activities. If no, please answer “None” or “N/A.” Click here to enter text.
- Please list all countries where you plan to conduct activities: Click here to enter text.
- Does or has your company, any Parent Company, any Subsidiary, any individual identified in response to any of #1 - #5 or any key employee of any of the foregoing (or any of the family members of any identified individuals or key employees) act or acted in any official capacity for: (a) any government or department, agency, or instrumentality thereof; (b) a government owned or controlled entity; (c) a public international organization, such as the United Nations or the World Bank; (d) a political party; or (e) a candidate for political office? If yes, please identify the individual(s) or entity(ies) and describe the official capacity. If no, please answer “None”: Click here to enter text.
- Does any person acting in an official capacity for, or any employee of, a government, department, agency, or instrumentality thereof, a government owned or controlled entity, a public international organization, a political party or a candidate for political office have any interest in or stand to benefit in any way as a result of your activities in connection with your potential business relationship with Hyland? If yes, please list the individual(s) or entity(ies) and provide details. If no, please answer “None”: Click here to enter text.
- Answer Yes or No to each item below with respect to your company, any Parent Company and any Subsidiaries.
Supplement to Hyland's Compliance and Due Diligence Form
Effective August 24th 2021
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Table of Contents
Effective August 6th 2021 to August 24th 2021
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Effective July 7th 2021 to August 6th 2021
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- Relationship with Royal Family Members. Is any person you listed as an officer, director, or owner (or any family member thereof), in the Legal Compliance and Operational Due Diligence Form a member of the Royal Family? Choose Yes or No.
- Does or did such individual(s) have an official or unofficial title or role in the government? Choose Yes or No.
- Does such individual(s) have direct or indirect power to award business, or an official or unofficial power over any aspect whatsoever of the government, including its decision-making process, executive function, administration, or finances? Choose Yes or No.
- Does such individual(s) have the ability to ascend to a government position by virtue of membership in the Royal Family? Choose Yes or No.
- Does such individual(s) enjoy benefits or privileges by virtue of their membership in the Royal Family? Choose Yes or No.
- Does such individual(s) have a relationship with the decision-makers in the government who decide whether to award business to your organization or to Hyland? Choose Yes or No.
Contractor Use Agreement - SF V1
Effective August 12th 2021
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Effective August 12th 2021 to August 12th 2021
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Effective July 14th 2021 to August 12th 2021
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Global Data Processing Addendum
Effective September 29th 2022
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Global Data Processing Addendum
This Global Data Processing Addendum together with all appendices and addenda (“DPA”) forms part of the Master Services Agreement (or similar agreement under which Services are provided to Hyland) (“Services Agreement”) which incorporates this DPA by reference.
EEA and Switzerland
The Parties agree that transfers of Personal Data from the European Economic Area or Switzerland (collectively the “EEA”) shall be governed by the EU SCCs (as supplemented by this DPA), which are incorporated herein by reference.
The Parties further agree that the EU SCCs shall be completed as follows:
- Module 2 shall apply unless Hyland is a Processor in which case Module 3 will apply.
- Clause 7, the optional docking clause will not apply.
- Clause 9(a), Option 2 will apply. Hyland authorizes Service Provider to engage Sub-Processors as set forth in Section 5 of this DPA.
- Clause 11, the optional redress language will not apply.
- Clause 17, Option 1 will apply, and the EU SCCs shall be governed by the law specified in the Services Agreement, provided that law is an EU Member State recognizing third party beneficiaries, otherwise the laws of the Netherlands shall apply.
- Under Clause 18(b), disputes will be resolved before the courts specified under the Services Agreement, provided those courts are in an EU Member State recognizing third party beneficiaries, otherwise those courts shall be the courts of the Netherlands.
- Annex I of the EU SCCs shall be deemed completed with the information set out in the Data Processing Particulars.
- Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix A.
- Annex III of the EU SCCs shall be deemed completed with the information set out in the Data Processing Particulars.
In relation to Personal Data that is protected by the Swiss Federal Act on Data Protection, the EU SCCs will apply as completed herein and as adapted below:
- The Swiss Federal Data Protection and Information Commissioner (“Swiss DPA”) is the exclusive supervisory authority, and each reference to a “supervisory authority” shall be understood to be a reference to the Swiss DPA.
- The term “member state” will not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of enforcing their rights in their place of habitual residence (Switzerland) in accordance with Clause 18 and the choice of law in Clause 17 shall be the applicable Swiss law.
- References to the GDPR and EU SCCs shall include equivalent provisions of the Swiss Federal Act on Data Protection.
Signatures to the Services Agreement shall constitute all necessary signatures to the EU SCCs, including the Annexes attached thereto.
ADDENDUM II
United Kingdom
Part 1: Tables
TABLE 1: Parties | ||
Start date | Effective Date as defined in the Services Agreement. | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
Parties’ details | Full legal name: Hyland on behalf of its affiliates located in the United Kingdom, including the following: Hyland UK Operations Limited Hyland UK Holdings Limited Hyland Software UK Ltd. Hyland Software Solutions UK Ltd. Nuxeo Group Limited Nuxeo Limited Trading name (if different): n/a Main address (if a company registered address): As specified in the Services Agreement Official registration number (if any) (company number of similar identifier): | Full legal name: Service Provider, as set forth in the Services Agreement. Trading name (if different): Main address (if a company registered address): As specified in the Services Agreement Official registration number (if any) (company number of similar identifier): |
Key Contact | Full Name (optional): Job Title: Global Privacy Officer Contact Details including email: privacy@hyland.com | Full Name (optional): Job Title: Contact Details including email: As set forth in the Data Processing Particulars |
Signature (if required for purposes of Section 2) | Signatures to the Services Agreement shall constitute all necessary signatures to this Addendum II. | Signatures to the Services Agreement shall constitute all necessary signatures to this Addendum II. |
TABLE 2: Selected SCCs, Modules, and Selected Clauses | |
Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended, including the Appendix Information. |
TABLE 3: Appendix Information | |
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in. | |
Annex 1A: List of Parties: | As described in the Data Processing Particulars |
Annex 1B: Description of Transfer: | As described in the Data Processing Particulars |
Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: | As described in the DPA, Appendix A |
Annex III: List of Sub processors (Modules 2 and 3 only): | As described in the Data Processing Particulars |
TABLE 4: Ending this Addendum when the Approved Addendum Changes | |
Ending this Addendum when the Approved Addendum Changes | Which Parties may end this Addendum as set out in Section 19: Importer Exporter |
Part 2: Mandatory Clauses
Mandatory Clauses | Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses. |
ADDENDUM III
California, USA
The following additional provisions apply to Service Providers ’s Processing of the Personal Information that is subject to the CCPA and/or CPRA, as applicable.
APPENDIX A
Security Measures
Taking into account
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons ,
Service Provider shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures to protect against reasonably foreseeable risks to the security, confidentiality, integrity and resilience of Personal Data. Such program shall include those measures set forth in the Services Agreement and the DPA, including, at a minimum, the following:
Administrative Controls
- A person or committee responsible for Service Provider’s information security and privacy program;
- Policies and procedures to investigate, mitigate, and provide notice of a Personal Data Breach;
- Vulnerability management program to identity, prioritize and remediate security vulnerabilities;
- Employees that are subject to confidentiality commitments and understand their obligations and responsibilities in relation to the Service Provider’s information privacy and security program;
- A security awareness training program, which includes periodic security reminders and updates;
- A password policy, requiring complex passwords, a maximum password age, a minimum password complexity, account lockout policies and other logon restrictions; and
- Disaster recovery and business continuity procedures.
Physical Controls
- Policies and procedures to safeguard the facilities and equipment that house Personal Data against unauthorized physical access, theft or destruction;
- Procedures to control and validate access to facilities that house Personal Data based on role/function, including visitor control;
- Physical safeguards for all workstations that access Personal Data to restrict access from authorized users; and
- Permanently and securely destroying or removing Personal Data from hardware prior to final disposition.
Technical Controls
- Policies and procedures to limit access rights based on the principle of least privilege;
- User access controls that address timely provisioning and de-provisioning of user accounts;
- Workstations that are set to lock automatically after a set period of inactivity;
- Encryption at rest and in transit of Personal Data;
- Industry standard anti-malware software used on all endpoints with behavioral based protection against ransomware and other exploits;
- Procedures to ensure that all security patches are applied in a timely manner;
- Operating system and application patches and updates pushed regularly;
- Network segregation including but not limited to the separation of all Hyland Personal Data stored by Service Provider;
- An external audit program, tested at least annually; and
- Completed attestations, such as SOC 2 reports, shall be provided to Hyland upon written request.
Effective January 19th 2022 to September 29th 2022
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Global Data Processing Addendum
This Global Data Processing Addendum together with all attachments and appendices (“DPA”) forms part of the Master Services Agreement (or similar agreement under which Services are provided to Hyland) (“Services Agreement”) which incorporates this Addendum by reference.
AGREEMENT
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendix) and the Services Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II. In the event of any conflict or inconsistency among or between the terms and conditions of any such EU Model Clauses and this DPA and/or the Services Agreement, the terms of the EU Model Clauses shall prevail.
APPENDIX A
Subject Matter and During of the Processing | The subject matter of the Processing is Service Providers provision of Services under the Services Agreement. The duration of the Processing is the term of the Services Agreement, and any exit period, if applicable. |
Categories of Data Subjects whose Personal Data is Processed | Employees, Vendors, Website visitors, Hyland Customers or End-Users |
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services as set forth in the Services Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Type of Personal Data Processed | The Personal Data transferred may concern the following categories of Data Subjects: Employees - Past, potential, present and future staff of Hyland (including job candidates, volunteers, agents, independent contractors, interns, temporary and casual workers). Vendors - Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Hyland and related staff. Website visitors – Individuals who visit any Hyland owned or operated website. Hyland Customers or End Users (collectively, “Customers”) – (a) Past, present and potential Customers of Hyland, and (b) data subjects whose Personal Data is uploaded or provided by Customers to Hyland during use of Hyland’s services or products. |
Categories of Personal Data Processed | The Personal Data transferred may concern the following categories: Employees Identification data: civil/marital status; first and last name; photograph; date and place of birth; nationality; corporate identifier; gender. Contact details: address; telephone number (fixed and mobile); email address; fax number; emergency contact information. Employment details: job title; company name; grade, occupation code; geographic location; employee performance and evaluation data; employee discipline information; information regarding previous roles and employment; employee benefits information such as election decisions, leave requests, authorization/declination, health insurance company. National identifiers: national ID/passport number; tax ID; government identification number; driver's license, visa or immigration status. Academic and professional qualifications: degrees; titles; skills; language proficiency; training information; employment history; CV/résumé. Financial data: bank account number; IBAN number; bank details including bank name, bank code, sort code; salary and compensation data; bonuses; pension qualification information; payroll data; tax class; tax office name. IT related data: computer ID; user ID and password; domain name; IP address; log files; software and hardware inventory; software usage pattern tracking information (i.e., cookies and information recorded for operation and training purposes). Lifestyle: hobbies; social activities; holiday preferences. Vendors Identification data: first and last name; date of birth; place of birth; nationality; photograph; vendor ID. Contact details: address; professional email address; professional telephone number (including mobile telephone number). Professional details: job title; employer; academic and professional qualifications; data related to transactions involving goods and services. National identifiers: tax ID; government identification number. Financial data: bank account number; bank details. Website visitors IT-related data: unique device identifiers, dynamic and static Internet Protocol addresses, as well as other information, such as browser characteristics, language preferences, operating system details, referring URLs, length of visits, and pages viewed. Customers, potential Customers and/or their staff, each as applicable Contact information (including name, physical address, e-mail and telephone numbers); Employer; Job title; Login credentials; Account profile, including interests and photograph; Applications for Hyland’s educational opportunities, including name, contact information, references, programming experience, and application essays; Dietary preferences and restrictions; Order information for trainings courses; Training records including courses taken, certifications completed, and scores and grades; Questions, feedback, comments and other postings, including through https://community.hyland.com; Other information the Customer chooses to provide; Information provided by third parties: data relating to the Customer, potential Customer or staff having clicked on a Hyland advertisement posted on a third party website; Information provided by third parties, where a Customer attends a Hyland event sponsored by a third party: including name, e-mail address, and phone number; Versions of Hyland Group company software used and how the software is being used (what functions, how often etc.); bank account number; bank details; credit card details; purchasing history; return history; cancellation history; and Personal Data submitted by a Customer in the course of the Customer's use of Hyland's Services or during the performance of Services under the Service Agreement. |
Categories of Sensitive Personal Data Processed | No collection of any sensitive data by a Service Provider is anticipated other than employee data required to provide Services in connection with valid employment purposes or to the extent required by applicable law. Such collection will only concern limited sensitive data, for example, health-related information for the purpose of managing employee absences, or disabilities in order to provide access to our premises. |
FOR USE ONLY WITH THE EU MODEL CLAUSES | |
Data Exporter (including country of establishment) | Hyland, as defined in this DPA. |
Data Importer (including country of establishment) | Service Provider, as defined in the Service Provider Agreement. |
Frequency of the Transfer | Continuous basis |
Retention Period | The Personal Data transferred may be stored in an identifiable form for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the Data Exporter. |
Governing Law | MODULE TWO: EU Member State in which the data exporter (i.e., applicable Hyland entity) is established. MODULE THREE: EU Member State in which the data exporter (i.e., applicable customer entity) is established. |
Choice of Forum and Jurisdiction | The Parties agree that any disputes arising from the EU Model Clauses shall be resolves by the courts of the Netherlands. |
Sub-processors | Data importer may use Sub-processors as set forth by Section 6 of this DPA. |
Competent Supervisory Authority | The competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established. |
Appendix B
Technical and organizational measures
Taking into account
Service Provider shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures to protect against reasonably foreseeable risks to the security, confidentiality, integrity and resilience of Personal Data. Such program shall include, at a minimum, the following:
Administrative Controls
- A person or committee responsible for Service Provider’s information security and privacy program;
- Policies and procedures to investigate, mitigate, and provide notice of a Personal Data Breach;
- Vulnerability management program to identity, prioritize and remediate security vulnerabilities;
- Employees that are subject to confidentiality and non-disclosure commitments and understand their obligations and responsibilities in relation to the Service Providers information privacy and security program;
- A security awareness training program, which includes periodic security reminders and updates;
- A password policy, requiring complex passwords, a maximum password age, a minimum password age, account lockout policies and other logon restrictions; and
- Disaster recovery and business continuity procedures.
Physical Controls
- Policies and procedures to safeguard the facilities and equipment that house Personal Data against unauthorized physical access, theft or destruction;
- Procedures to control and validate access to facilities that house Personal Data based on role/function, including visitor control;
- Physical safeguards for all workstations that access Personal Data to restrict access from authorized users; and
- Permanently destroying or removing Personal Data from hardware prior to final disposition.
Technical Controls
- Policies and procedures to limit access rights based on the principle of least privilege;
- User access controls that address timely provisioning and de-provisioning of user accounts;
- Workstations that are set to lock automatically after a set period of inactivity;
- Encryption at rest and in transit of Personal Data;
- Industry standard anti-malware software used on all endpoints with behavioral based protection against ransomware and other exploits;
- Procedures to ensure that all security patches are applied in a timely manner;
- Operating system and application patches and updates pushed regularly;
- Network segregation including but not limited to the separation of all Hyland Personal Data stored by Service Provider; and
- Service Providers that store Hyland Personal Data shall also maintain an external audit program, tested at least annually.
- Completed attestations, such as SOC 2 reports, shall be provided to Hyland upon written request.
Effective December 7th 2021 to January 19th 2022
DownloadTable of Contents
Global Data Processing Addendum
This Global Data Processing Addendum together with all attachments and appendices (“DPA”) forms part of the Master Services Agreement (or similar agreement under which Services are provided to Hyland) (“Services Agreement”) which incorporates this Addendum by reference.
AGREEMENT
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendix) and the Services Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II. In the event of any conflict or inconsistency among or between the terms and conditions of any such EU Model Clauses and this DPA and/or the Services Agreement, the terms of the EU Model Clauses shall prevail.
APPENDIX A
Subject Matter and During of the Processing | The subject matter of the Processing is Service Providers provision of Services under the Services Agreement. The duration of the Processing is the term of the Services Agreement, and any exit period, if applicable. |
Categories of Data Subjects whose Personal Data is Processed | Employees, Vendors, Website visitors, Hyland Customers or End-Users |
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services as set forth in the Services Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Type of Personal Data Processed | The Personal Data transferred may concern the following categories of Data Subjects: Employees - Past, potential, present and future staff of Hyland (including job candidates, volunteers, agents, independent contractors, interns, temporary and casual workers). Vendors - Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Hyland and related staff. Website visitors – Individuals who visit any Hyland owned or operated website. Hyland Customers or End Users (collectively, “Customers”) – (a) Past, present and potential Customers of Hyland, and (b) data subjects whose Personal Data is uploaded or provided by Customers to Hyland during use of Hyland’s services or products. |
Categories of Personal Data Processed | The Personal Data transferred may concern the following categories: Employees Identification data: civil/marital status; first and last name; photograph; date and place of birth; nationality; corporate identifier; gender. Contact details: address; telephone number (fixed and mobile); email address; fax number; emergency contact information. Employment details: job title; company name; grade, occupation code; geographic location; employee performance and evaluation data; employee discipline information; information regarding previous roles and employment; employee benefits information such as election decisions, leave requests, authorization/declination, health insurance company. National identifiers: national ID/passport number; tax ID; government identification number; driver's license, visa or immigration status. Academic and professional qualifications: degrees; titles; skills; language proficiency; training information; employment history; CV/résumé. Financial data: bank account number; IBAN number; bank details including bank name, bank code, sort code; salary and compensation data; bonuses; pension qualification information; payroll data; tax class; tax office name. IT related data: computer ID; user ID and password; domain name; IP address; log files; software and hardware inventory; software usage pattern tracking information (i.e., cookies and information recorded for operation and training purposes). Lifestyle: hobbies; social activities; holiday preferences. Vendors Identification data: first and last name; date of birth; place of birth; nationality; photograph; vendor ID. Contact details: address; professional email address; professional telephone number (including mobile telephone number). Professional details: job title; employer; academic and professional qualifications; data related to transactions involving goods and services. National identifiers: tax ID; government identification number. Financial data: bank account number; bank details. Website visitors IT-related data: unique device identifiers, dynamic and static Internet Protocol addresses, as well as other information, such as browser characteristics, language preferences, operating system details, referring URLs, length of visits, and pages viewed. Customers, potential Customers and/or their staff, each as applicable Contact information (including name, physical address, e-mail and telephone numbers); Employer; Job title; Login credentials; Account profile, including interests and photograph; Applications for Hyland’s educational opportunities, including name, contact information, references, programming experience, and application essays; Dietary preferences and restrictions; Order information for trainings courses; Training records including courses taken, certifications completed, and scores and grades; Questions, feedback, comments and other postings, including through https://community.hyland.com; Other information the Customer chooses to provide; Information provided by third parties: data relating to the Customer, potential Customer or staff having clicked on a Hyland advertisement posted on a third party website; Information provided by third parties, where a Customer attends a Hyland event sponsored by a third party: including name, e-mail address, and phone number; Versions of Hyland Group company software used and how the software is being used (what functions, how often etc.); bank account number; bank details; credit card details; purchasing history; return history; cancellation history; and Personal Data submitted by a Customer in the course of the Customer's use of Hyland's Services or during the performance of Services under the Service Agreement. |
Categories of Sensitive Personal Data Processed | No collection of any sensitive data by a Service Provider is anticipated other than employee data required to provide Services in connection with valid employment purposes or to the extent required by applicable law. Such collection will only concern limited sensitive data, for example, health-related information for the purpose of managing employee absences, or disabilities in order to provide access to our premises. |
FOR USE ONLY WITH THE EU MODEL CLAUSES | |
Data Exporter (including country of establishment) | Hyland, as defined in this DPA. |
Data Importer (including country of establishment) | Service Provider, as defined in the Service Provider Agreement. |
Frequency of the Transfer | Continuous basis |
Retention Period | The Personal Data transferred may be stored in an identifiable form for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the Data Exporter. |
Governing Law | MODULE TWO: EU Member State in which the data exporter (i.e., applicable Hyland entity) is established. MODULE THREE: EU Member State in which the data exporter (i.e., applicable customer entity) is established. |
Choice of Forum and Jurisdiction | The Parties agree that any disputes arising from the EU Model Clauses shall be resolves by the courts of the Netherlands. |
Sub-processors | Data importer may use Sub-processors as set forth by Section 6 of this DPA. |
Competent Supervisory Authority | The competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established. |
Appendix B
Technical and organizational measures
Taking into account
Service Provider shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures to protect against reasonably foreseeable risks to the security, confidentiality, integrity and resilience of Personal Data. Such program shall include, at a minimum, the following:
Administrative Controls
- A person or committee responsible for Service Provider’s information security and privacy program;
- Policies and procedures to investigate, mitigate, and provide notice of a Personal Data Breach;
- Vulnerability management program to identity, prioritize and remediate security vulnerabilities;
- Employees that are subject to confidentiality and non-disclosure commitments and understand their obligations and responsibilities in relation to the Service Providers information privacy and security program;
- A security awareness training program, which includes periodic security reminders and updates;
- A password policy, requiring complex passwords, a maximum password age, a minimum password age, account lockout policies and other logon restrictions; and
- Disaster recovery and business continuity procedures.
Physical Controls
- Policies and procedures to safeguard the facilities and equipment that house Personal Data against unauthorized physical access, theft or destruction;
- Procedures to control and validate access to facilities that house Personal Data based on role/function, including visitor control;
- Physical safeguards for all workstations that access Personal Data to restrict access from authorized users; and
- Permanently destroying or removing Personal Data from hardware prior to final disposition.
Technical Controls
- Policies and procedures to limit access rights based on the principle of least privilege;
- User access controls that address timely provisioning and de-provisioning of user accounts;
- Workstations that are set to lock automatically after a set period of inactivity;
- Encryption at rest and in transit of Personal Data;
- Industry standard anti-malware software used on all endpoints with behavioral based protection against ransomware and other exploits;
- Procedures to ensure that all security patches are applied in a timely manner;
- Operating system and application patches and updates pushed regularly;
- Network segregation including but not limited to the separation of all Hyland Personal Data stored by Service Provider; and
- Service Providers that store Hyland Personal Data shall also maintain an external audit program, tested at least annually.
- Completed attestations, such as SOC 2 reports, shall be provided to Hyland upon written request.
Effective September 24th 2021 to December 7th 2021
DownloadTable of Contents
Global Data Processing Addendum
This Global Data Processing Addendum together with all attachments and appendices (“DPA”) forms part of the Master Services Agreement (or similar agreement under which Services are provided to Hyland) (“Services Agreement”) between Service Provider (or similar term under the Services Agreement) and Hyland and is incorporated therein by reference.
AGREEMENT
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendix) and the Services Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II. In the event of any conflict or inconsistency among or between the terms and conditions of any such EU Model Clauses and this DPA and/or the Services Agreement, the terms of the EU Model Clauses shall prevail.
APPENDIX A
Subject Matter and During of the Processing | The subject matter of the Processing is Service Providers provision of Services under the Services Agreement. The duration of the Processing is the term of the Services Agreement, and any exit period, if applicable. |
Categories of Data Subjects whose Personal Data is Processed | Employees, Vendors, Website visitors, Hyland Customers or End-Users |
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services as set forth in the Services Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Type of Personal Data Processed | The Personal Data transferred may concern the following categories of Data Subjects: Employees - Past, potential, present and future staff of Hyland (including job candidates, volunteers, agents, independent contractors, interns, temporary and casual workers). Vendors - Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Hyland and related staff. Website visitors – Individuals who visit any Hyland owned or operated website. Hyland Customers or End Users (collectively, “Customers”) – (a) Past, present and potential Customers of Hyland, and (b) data subjects whose Personal Data is uploaded or provided by Customers to Hyland during use of Hyland’s services or products. |
Categories of Personal Data Processed | The Personal Data transferred may concern the following categories: Employees Identification data: civil/marital status; first and last name; photograph; date and place of birth; nationality; corporate identifier; gender. Contact details: address; telephone number (fixed and mobile); email address; fax number; emergency contact information. Employment details: job title; company name; grade, occupation code; geographic location; employee performance and evaluation data; employee discipline information; information regarding previous roles and employment; employee benefits information such as election decisions, leave requests, authorization/declination, health insurance company. National identifiers: national ID/passport number; tax ID; government identification number; driver's license, visa or immigration status. Academic and professional qualifications: degrees; titles; skills; language proficiency; training information; employment history; CV/résumé. Financial data: bank account number; IBAN number; bank details including bank name, bank code, sort code; salary and compensation data; bonuses; pension qualification information; payroll data; tax class; tax office name. IT related data: computer ID; user ID and password; domain name; IP address; log files; software and hardware inventory; software usage pattern tracking information (i.e., cookies and information recorded for operation and training purposes). Lifestyle: hobbies; social activities; holiday preferences. Vendors Identification data: first and last name; date of birth; place of birth; nationality; photograph; vendor ID. Contact details: address; professional email address; professional telephone number (including mobile telephone number). Professional details: job title; employer; academic and professional qualifications; data related to transactions involving goods and services. National identifiers: tax ID; government identification number. Financial data: bank account number; bank details. Website visitors IT-related data: unique device identifiers, dynamic and static Internet Protocol addresses, as well as other information, such as browser characteristics, language preferences, operating system details, referring URLs, length of visits, and pages viewed. Customers, potential Customers and/or their staff, each as applicable Contact information (including name, physical address, e-mail and telephone numbers); Employer; Job title; Login credentials; Account profile, including interests and photograph; Applications for Hyland’s educational opportunities, including name, contact information, references, programming experience, and application essays; Dietary preferences and restrictions; Order information for trainings courses; Training records including courses taken, certifications completed, and scores and grades; Questions, feedback, comments and other postings, including through https://community.hyland.com; Other information the Customer chooses to provide; Information provided by third parties: data relating to the Customer, potential Customer or staff having clicked on a Hyland advertisement posted on a third party website; Information provided by third parties, where a Customer attends a Hyland event sponsored by a third party: including name, e-mail address, and phone number; Versions of Hyland Group company software used and how the software is being used (what functions, how often etc.); bank account number; bank details; credit card details; purchasing history; return history; cancellation history; and Personal Data submitted by a Customer in the course of the Customer's use of Hyland's Services or during the performance of Services under the Service Agreement. |
Categories of Sensitive Personal Data Processed | No collection of any sensitive data by a Service Provider is anticipated other than employee data required to provide Services in connection with valid employment purposes or to the extent required by applicable law. Such collection will only concern limited sensitive data, for example, health-related information for the purpose of managing employee absences, or disabilities in order to provide access to our premises. |
FOR USE ONLY WITH THE EU MODEL CLAUSES | |
Data Exporter (including country of establishment) | Hyland, as defined in this DPA. |
Data Importer (including country of establishment) | Service Provider, as defined in the Service Provider Agreement. |
Frequency of the Transfer | Continuous basis |
Retention Period | The Personal Data transferred may be stored in an identifiable form for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the Data Exporter. |
Governing Law | MODULE TWO: EU Member State in which the data exporter (i.e., applicable Hyland entity) is established. MODULE THREE: EU Member State in which the data exporter (i.e., applicable customer entity) is established. |
Choice of Forum and Jurisdiction | The Parties agree that any disputes arising from the EU Model Clauses shall be resolves by the courts of the Netherlands. |
Sub-processors | Data importer may use Sub-processors as set forth by Section 6 of this DPA. |
Competent Supervisory Authority | The competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established. |
Appendix B
Technical and organizational measures
Taking into account
Service Provider shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures to protect against reasonably foreseeable risks to the security, confidentiality, integrity and resilience of Personal Data. Such program shall include, at a minimum, the following:
Administrative Controls
- A person or committee responsible for Service Provider’s information security and privacy program;
- Policies and procedures to investigate, mitigate, and provide notice of a Personal Data Breach;
- Vulnerability management program to identity, prioritize and remediate security vulnerabilities;
- Employees that are subject to confidentiality and non-disclosure commitments and understand their obligations and responsibilities in relation to the Service Providers information privacy and security program;
- A security awareness training program, which includes periodic security reminders and updates;
- A password policy, requiring complex passwords, a maximum password age, a minimum password age, account lockout policies and other logon restrictions; and
- Disaster recovery and business continuity procedures.
Physical Controls
- Policies and procedures to safeguard the facilities and equipment that house Personal Data against unauthorized physical access, theft or destruction;
- Procedures to control and validate access to facilities that house Personal Data based on role/function, including visitor control;
- Physical safeguards for all workstations that access Personal Data to restrict access from authorized users; and
- Permanently destroying or removing Personal Data from hardware prior to final disposition.
Technical Controls
- Policies and procedures to limit access rights based on the principle of least privilege;
- User access controls that address timely provisioning and de-provisioning of user accounts;
- Workstations that are set to lock automatically after a set period of inactivity;
- Encryption at rest and in transit of Personal Data;
- Industry standard anti-malware software used on all endpoints with behavioral based protection against ransomware and other exploits;
- Procedures to ensure that all security patches are applied in a timely manner;
- Operating system and application patches and updates pushed regularly;
- Network segregation including but not limited to the separation of all Hyland Personal Data stored by Service Provider; and
- Service Providers that store Hyland Personal Data shall also maintain an external audit program, tested at least annually.
- Completed attestations, such as SOC 2 reports, shall be provided to Hyland upon written request.
Customer GDPR DPA
Effective October 4th 2021
DownloadTable of Contents
| CUSTOMER Print Name: _________________________________ Title: _______________________________________ Date: ______________________________________ Mailing Address: ____________________________ ____________________________________________ Email: ______________________________________ Signature: ____________________________________ | Print Name: _____________________________ Title: __________________________________ Date: __________________________________ Signature: ________________________________ Hyland Legal Approved By: Date: |
- Customer Employees (Past, potential, present and future staff of Customer)
- Customer Vendors (Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Customer and related staff.)
- Customers End Users (Past, present and potential users of Customer services or products)
- Any Personal Data submitted or made available by the Customer to Hyland in the course of Customer's use of Hyland's Services under the Related Agreements:
- Customer determines what Personal Data is provided to Hyland.
- Continuous basis (services related to Hyland’s hosted offerings or cloud services);
- One-off basis (technical support, professional services or other applicable services)
- The data is processes as part of the data exporter’s and the data importer’s regular business operations as well as on an ad hoc basis where a specific business need arises. The nature of the processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- To provide the Services set forth in the Related Agreements.
- For hosting or cloud customers, data is retained for the duration of the Related Agreements, including any applicable transition period. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter.
- The data importer may use various processors to process the data for the purposes set out above. Such processors are typically engaged on the basis of a contract with an unlimited term. See also Section 3(e) of this DPA.
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Effective October 4th 2021 to October 4th 2021
DownloadTable of Contents
| CUSTOMER Print Name: _________________________________ Title: _______________________________________ Date: ______________________________________ Mailing Address: ____________________________ ____________________________________________ Email: ______________________________________ Signature: ____________________________________ | Print Name: _____________________________ Title: __________________________________ Date: __________________________________ Signature: ________________________________ Hyland Legal Approved By: Date: |
- Customer Employees (Past, potential, present and future staff of Customer)
- Customer Vendors (Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Customer and related staff.)
- Customers End Users (Past, present and potential users of Customer services or products)
- Other: ______________________________________________________________
- Any Personal Data submitted or made available by the Customer to Hyland in the course of Customer's use of Hyland's Services under the Related Agreements:
- Customer determines what Personal Data is provided to Hyland.
- Continuous basis (services related to Hyland’s hosted offerings or cloud services);
- One-off basis (technical support, professional services or other applicable services)
- The data is processes as part of the data exporter’s and the data importer’s regular business operations as well as on an ad hoc basis where a specific business need arises. The nature of the processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- To provide the Services set forth in the Related Agreements.
- For hosting or cloud customers, data is retained for the duration of the Related Agreements, including any applicable transition period. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter.
- The data importer may use various processors to process the data for the purposes set out above. Such processors are typically engaged on the basis of a contract with an unlimited term. See also Section 3(e) of this DPA.
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Service Class Manual
Healthcare Service Class Manual
Healthcare Schedule - SaaS
Effective March 4th 2022
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HEALTHCARE SCHEDULE - SAAS
This Healthcare Schedule (“Healthcare Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Ambulatory Surgery Centers” means a facility that performs outpatient surgery and/or procedures (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite fees as described in the Healthcare Customer Schedule.
“Community Connect Physician Practice” means a physician practice (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect User(s)” means: Small Community Connect Hospital(s); Community Connect Physician Practice(s); and Ambulatory Surgery Centers.
“Small Community Connect Hospital” means a hospital (i) which has less than two hundred and fifty (250) licensed beds (as most recently reported by Customer for such hospital), (ii) to which Customer grants access to Customer’s EPIC system; and (iii) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Customer Schedule.
1. ADDITIONAL TERMS.
1.1 Use by Community Connect User. In addition to the grant of access to the Hyland Cloud Service in the SaaS Schedule, such Hyland Cloud Service may also be used by a Community Connect User solely to manage its own medical records function through Epic.
1.2 Indemnification. Customer understands and agrees that Community Connect Users may use the Hyland Cloud Service only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. PAYMENT TERMS FOR COMMUNITY CONNECT USERS.
2.1 SaaS for Small Community Connect Hospitals. For each Small Community Connect Hospital to which Customer wishes to grant access to the Hyland Cloud Service as a Community Connect User, Customer shall pay SaaS Fees in an amount determined by multiplying the number of licensed beds for such Small Community Connect Hospital (at the time of such payment) for such Small Community Connect Hospital) by Hyland’s then-current Small Community Connect Hospital SaaS Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of licensed beds for each Small Community Connect Hospital that is a Community Connect User hereunder. If the number of licensed beds of such Small Community Connect Hospital increases based upon the reports contemplated herein, Customer shall pay additional SaaS Fees to Hyland in an amount equal to the number of such additional licensed beds, multiplied by Hyland’s then-current Small Community Connect Hospital SaaS Fee. Customer may not transfer or reassign license rights between Small Community Connect Hospitals, and shall not be entitled to a refund or credit if the number of licensed beds decreases at any time.
2.2 SaaS Fees for Community Connect Physician Practices. For each Community Connect Physician Practice which Customer wishes to grant access to the Hyland Cloud Service as a Community Connect User, Customer shall pay additional SaaS Fees in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice SaaS Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of physicians in each Community Connect Physician Practice that is a Community Connect User hereunder. If the number of physicians in such practice increases based upon the reports contemplated herein, Customer shall pay additional SaaS Fees to Hyland in an amount equal to the number of such additional physicians, multiplied by Hyland’s then-current Community Connect Physician Practice SaaS Fee. Customer may not transfer or reassign license rights between Community Connect Physician Practices, and shall not be entitled to a refund or credit if the number of physicians decreases at any time.
2.3 SaaS Fees for Ambulatory Surgery Centers. For each Ambulatory Surgery Center to which Customer wishes to grant access to the Hyland Cloud Service as a Community Connect User, Customer shall pay additional SaaS Fees in an amount determined by multiplying the number of operating/procedure rooms for such Ambulatory Surgery Center (at the time of such payment) for such Ambulatory Surgery Center by Hyland’s then-current Ambulatory Surgery Center SaaS Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of operating/procedure rooms for each Ambulatory Surgery Center that is a Community Connect User hereunder. If the number of operating/procedure rooms of such Ambulatory Surgery Center increases based upon the reports contemplated herein, Customer shall pay additional SaaS Fees to Hyland in an amount equal to the number of such additional operating/procedure rooms, multiplied by Hyland’s then-current Ambulatory Surgery Center SaaS Fee. Customer may not transfer or reassign license rights between Ambulatory Surgery Centers, and shall not be entitled to a refund or credit if the number of operating/procedure rooms decreases at any time.
3. TERM; TERMINATION. This Healthcare Schedule will be in effect for so long as the Customer’s SaaS Schedule, and will terminate upon any termination of Customer’s SaaS Schedule.
Effective October 27th 2021 to March 4th 2022
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HEALTHCARE SCHEDULE - SAAS
This Healthcare Schedule (“Healthcare Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Community Connect Physician Practice” means a physician practice (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite Software license fee and annual maintenance fees as described in this Healthcare Schedule.
“Community Connect User(s)” means Community Connect Physician Practice(s).
1. ADDITIONAL TERMS.
1.1 Use by Community Connect User. In addition to the grant of access to the Hyland Cloud Service in the SaaS Schedule, such Hyland Cloud Service may also be used by a Community Connect User solely to manage its own medical records function through Epic.
1.2 Indemnification. Customer understands and agrees that Community Connect Users may use the Hyland Cloud Service only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. PAYMENT TERMS FOR COMMUNITY CONNECT USERS.
2.1 SaaS Fees. For each Community Connect Physician Practice which Customer wishes to grant access to the Hyland Cloud Service as a Community Connect User, Customer shall pay additional SaaS Fees in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice SaaS Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of physicians in each Community Connect Physician Practice that is a Community Connect User hereunder. If the number of physicians in such practice increases, Customer shall pay additional SaaS Fees to Hyland in an amount equal to the number of such additional physicians, multiplied by Hyland’s then-current Community Connect Physician Practice SaaS Fee. Customer may not transfer or reassign license rights between Community Connect Physician Practices, and shall not be entitled to a refund or credit if the number of physicians decreases at any time.
3. TERM; TERMINATION. This Healthcare Schedule will be in effect for so long as the Customer’s SaaS Schedule, and will terminate upon any termination of Customer’s SaaS Schedule.
Healthcare Schedule
Effective February 15th 2024
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HEALTHCARE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Healthcare Schedule (this “Healthcare Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Healthcare Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Healthcare Schedule.
DEFINED TERMS
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Ambulatory Surgery Centers” means a facility that performs outpatient surgery and/or procedures (a) to which Customer grants access to Customer’s EMR system; and (b) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect Physician Practice” means a physician practice (a) to which Customer grants access to Customer’s EMR system; and (b) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect User(s)” means: Community Connect Hospital(s); Community Connect Physician Practice(s); and Ambulatory Surgery Centers.
“Community Connect Hospital” means a hospital (a) which has less than two hundred and fifty (250) licensed beds (as most recently reported by Customer for such hospital), (b) to which Customer grants access to Customer’s EMR system; and (c) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Incorporating Document” means the Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Healthcare Schedule by reference.
“Non-DICOM Object” means a collection of one of or more images or documents which are not identified by a study instance unique identifier (SUID) and are stored as a single file.
“Study” or “Studies” means a collection of one of or more images generated for a single patient which is identified by a study instance unique identifier (SUID).
1. COMMUNITY CONNECT USERS.
1.1 Use by Community Connect User. Software, Work Products, and Hyland Cloud Service, as applicable, may also be used by a Community Connect User solely to manage its own medical records function through Customer’s EMR system.
1.2 Community Connect Hospitals. For each Community Connect Hospital to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of licensed beds for such Community Connect Hospital (at the time of such payment) by Hyland’s then-current Community Connect Hospital Subscription Fee or SaaS Fee, as applicable.
1.3 Community Connect Physician Practices. For each Community Connect Physician Practice to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice Subscription Fee or SaaS Fee, as applicable.
1.4 Ambulatory Surgery Centers. For each Ambulatory Surgery Center to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of operating/procedure rooms for such Ambulatory Surgery Center (at the time of such payment) by Hyland’s then-current Ambulatory Surgery Center Subscription Fee or SaaS Fee, as applicable.
1.5 Community Connect Users Reports; Additional Fees. From time to time, but no less than annually, Customer shall report to Hyland, as applicable, (a) the number of licensed beds for each Community Connect Hospital, (b) the number of physicians in each Community Connect Physician Practice, and (c) the number of operating/procedure rooms for each Ambulatory Surgery Center that is a Community Connect User hereunder. If the number of licensed beds, physicians or operating/procedure rooms, as applicable, increases based upon the reports contemplated herein, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, to Hyland in an amount equal to the number of such additional licensed beds, physicians or operating/procedure rooms, multiplied by Hyland’s then-current Subscription Fee or SaaS Fee, as applicable, for the applicable Community Connect Users.
1.6 Indemnification. Customer understands and agrees that Community Connect Users may use the Software or the Hyland Cloud Service, as applicable, only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. ACUO AND NILREAD.
2.1 Acuo and Nilread Pricing. If Customer licenses Acuo or Nilread, Customer acknowledges that the pricing for such Software is based upon the number of Studies and Non-DICOM Objects that are generated annually by Customer using such Software, and such pricing will be adjusted based on Customer’s usage. For clarification, the number of Studies and Non-DICOM does not include any pre-existing Studies that are migrated into the Software.
2.2 Acuo and Nilread Reporting. Commencing on the first anniversary of the Effective Date and each anniversary thereafter, Customer shall promptly either (a) provide to Hyland reasonable access to the Software to enable Hyland to report to Customer in writing the number of Studies and Non-DICOM Objects generated by Customer during the reporting period identified by Hyland (the “Hyland Reported Number”) or (b) provide written attestation to the number of Studies and Non-DICOM Objects generated by Customer during the reporting period identified by Hyland (the “Customer Reported Number”) (the Hyland Reported Number and Customer Reported Number shall collectively be referred to as the “Reported Number”). The parties shall have the right to review and object in writing to such Reported Number. If either party objects to the Reported Number, the parties shall cooperate in good faith to attempt to resolve the dispute substantially in the manner described in the ‘Resolution of Invoice Disputes’ provision in the General Terms Schedule. As used herein, the number of Studies and Non-DICOM Objects resulting from the process described above shall be final and binding upon Hyland and Customer.
3. EPIC; AUDIT RIGHTS IN CONNECTION WITH EPIC MARKETPLACE PURCHASES. Subject to the following requirements, Hyland grants the Customer the right to conduct an audit to verify Hyland’s compliance with the terms and conditions found in the Vendor Services Development Agreement between Hyland and Epic Systems Corporation (“EPIC”). If Customer purchases from Hyland the rights to use Software which constitutes an “App” distributed under the Vendor Services program managed by EPIC (as the same may be amended from time to time), Hyland hereby grants to Customer the right to conduct an audit to verify Hyland’s compliance with the terms of the Vendor Services Development Agreement (which is the agreement that authorizes the distribution by Hyland of such Software, as amended from time to time). Such audit shall be conducted on a mutually agreed upon date and time, and Hyland will provide reasonable cooperation to provide all such pertinent information and data expressly requested by Customer; all such information and data produced by Hyland for such audit shall be made available to Customer from the applicable Hyland location(s). To the extent a material non-compliance by Hyland with the terms of such Vendor Services Development Agreement is identified and confirmed, Hyland shall bear the reasonable and actual costs and expenses incurred by Customer in conducting such audit.
4. PAYMENT TERMS. Customer shall pay to Hyland any fees described in this Healthcare Schedule in such amounts as invoiced by Hyland and in accordance with the General Terms Schedule.
5. CONTROLLING LANGUAGE. Hyland may make other versions of this Healthcare Schedule available in other languages at this online location. This English language version of this Healthcare Schedule controls over any version of the Healthcare Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Healthcare Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Healthcare Schedule that may be made available at this online location in another language.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective October 4th 2023 to February 15th 2024
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HEALTHCARE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Healthcare Schedule (this “Healthcare Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Healthcare Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Healthcare Schedule.
DEFINED TERMS
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Ambulatory Surgery Centers” means a facility that performs outpatient surgery and/or procedures (a) to which Customer grants access to Customer’s EMR system; and (b) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect Physician Practice” means a physician practice (a) to which Customer grants access to Customer’s EMR system; and (b) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect User(s)” means: Community Connect Hospital(s); Community Connect Physician Practice(s); and Ambulatory Surgery Centers.
“Community Connect Hospital” means a hospital (a) which has less than two hundred and fifty (250) licensed beds (as most recently reported by Customer for such hospital), (b) to which Customer grants access to Customer’s EMR system; and (c) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Incorporating Document” means the Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Healthcare Schedule by reference.
“Non-DICOM Object” means a collection of one of or more images or documents which are not identified by a study instance unique identifier (SUID) and are stored as a single file.
“Study” or “Studies” means a collection of one of or more images generated for a single patient which is identified by a study instance unique identifier (SUID).
1. COMMUNITY CONNECT USERS.
1.1 Use by Community Connect User. Software, Work Products, and Hyland Cloud Service, as applicable, may also be used by a Community Connect User solely to manage its own medical records function through Customer’s EMR system.
1.2 Community Connect Hospitals. For each Community Connect Hospital to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of licensed beds for such Community Connect Hospital (at the time of such payment) by Hyland’s then-current Community Connect Hospital Subscription Fee or SaaS Fee, as applicable.
1.3 Community Connect Physician Practices. For each Community Connect Physician Practice to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice Subscription Fee or SaaS Fee, as applicable.
1.4 Ambulatory Surgery Centers. For each Ambulatory Surgery Center to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of operating/procedure rooms for such Ambulatory Surgery Center (at the time of such payment) by Hyland’s then-current Ambulatory Surgery Center Subscription Fee or SaaS Fee, as applicable.
1.5 Community Connect Users Reports; Additional Fees. From time to time, but no less than annually, Customer shall report to Hyland, as applicable, (a) the number of licensed beds for each Community Connect Hospital, (b) the number of physicians in each Community Connect Physician Practice, and (c) the number of operating/procedure rooms for each Ambulatory Surgery Center that is a Community Connect User hereunder. If the number of licensed beds, physicians or operating/procedure rooms, as applicable, increases based upon the reports contemplated herein, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, to Hyland in an amount equal to the number of such additional licensed beds, physicians or operating/procedure rooms, multiplied by Hyland’s then-current Subscription Fee or SaaS Fee, as applicable, for the applicable Community Connect Users.
1.6 Indemnification. Customer understands and agrees that Community Connect Users may use the Software or the Hyland Cloud Service, as applicable, only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. ACUO AND NILREAD.
2.1 Acuo and Nilread Pricing. If Customer licenses Acuo or Nilread, Customer acknowledges that the pricing for such Software is based upon the number of Studies and Non-DICOM Objects that are generated annually by Customer using such Software, and such pricing will be adjusted based on Customer’s usage. For clarification, the number of Studies and Non-DICOM does not include any pre-existing Studies that are migrated into the Software.
2.2 Acuo and Nilread Reporting. Commencing on the first anniversary of the Effective Date and each anniversary thereafter, Customer shall promptly either (a) provide to Hyland reasonable access to the Software to enable Hyland to report to Customer in writing the number of Studies and Non-DICOM Objects generated by Customer during the reporting period identified by Hyland (the “Hyland Reported Number”) or (b) provide written attestation to the number of Studies and Non-DICOM Objects generated by Customer during the reporting period identified by Hyland (the “Customer Reported Number”) (the Hyland Reported Number and Customer Reported Number shall collectively be referred to as the “Reported Number”). The parties shall have the right to review and object in writing to such Reported Number. If either party objects to the Reported Number, the parties shall cooperate in good faith to attempt to resolve the dispute substantially in the manner described in the ‘Resolution of Invoice Disputes’ provision in the General Terms Schedule. As used herein, the number of Studies and Non-DICOM Objects resulting from the process described above shall be final and binding upon Hyland and Customer.
3. PAYMENT TERMS. Customer shall pay to Hyland any fees described in this Healthcare Schedule in such amounts as invoiced by Hyland and in accordance with the General Terms Schedule.
4. CONTROLLING LANGUAGE. Hyland may make other versions of this Healthcare Schedule available in other languages at this online location. This English language version of this Healthcare Schedule controls over any version of the Healthcare Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Healthcare Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Healthcare Schedule that may be made available at this online location in another language.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 3rd 2023 to October 4th 2023
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HEALTHCARE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Healthcare Schedule (this “Healthcare Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Healthcare Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Healthcare Schedule.
DEFINED TERMS
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Ambulatory Surgery Centers” means a facility that performs outpatient surgery and/or procedures (a) to which Customer grants access to Customer’s EMR system; and (b) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect Physician Practice” means a physician practice (a) to which Customer grants access to Customer’s EMR system; and (b) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect User(s)” means: Community Connect Hospital(s); Community Connect Physician Practice(s); and Ambulatory Surgery Centers.
“Community Connect Hospital” means a hospital (a) which has less than two hundred and fifty (250) licensed beds (as most recently reported by Customer for such hospital), (b) to which Customer grants access to Customer’s EMR system; and (c) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Incorporating Document” means the Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Healthcare Schedule by reference.
“Non-DICOM Object” means a collection of one of or more images or documents which are not identified by a study instance unique identifier (SUID) and are stored as a single file.
“Study” or “Studies” means a collection of one of or more images generated for a single patient which is identified by a study instance unique identifier (SUID).
1. COMMUNITY CONNECT USERS.
1.1 Use by Community Connect User. Software, Work Products, and Hyland Cloud Service, as applicable, may also be used by a Community Connect User solely to manage its own medical records function through Customer’s EMR system.
1.2 Community Connect Hospitals. For each Community Connect Hospital to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of licensed beds for such Community Connect Hospital (at the time of such payment) by Hyland’s then-current Community Connect Hospital Subscription Fee or SaaS Fee, as applicable.
1.3 Community Connect Physician Practices. For each Community Connect Physician Practice to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice Subscription Fee or SaaS Fee, as applicable.
1.4 Ambulatory Surgery Centers. For each Ambulatory Surgery Center to which Customer wishes to grant access to the Software or to the Hyland Cloud Service, as the case may be, as a Community Connect User, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, in an amount determined by multiplying the number of operating/procedure rooms for such Ambulatory Surgery Center (at the time of such payment) by Hyland’s then-current Ambulatory Surgery Center Subscription Fee or SaaS Fee, as applicable.
1.5 Community Connect Users Reports; Additional Fees. From time to time, but no less than annually, Customer shall report to Hyland, as applicable, (a) the number of licensed beds for each Community Connect Hospital, (b) the number of physicians in each Community Connect Physician Practice, and (c) the number of operating/procedure rooms for each Ambulatory Surgery Center that is a Community Connect User hereunder. If the number of licensed beds, physicians or operating/procedure rooms, as applicable, increases based upon the reports contemplated herein, Customer shall pay additional Subscription Fees or SaaS Fees, as applicable, to Hyland in an amount equal to the number of such additional licensed beds, physicians or operating/procedure rooms, multiplied by Hyland’s then-current Subscription Fee or SaaS Fee, as applicable, for the applicable Community Connect Users.
1.6 Indemnification. Customer understands and agrees that Community Connect Users may use the Software or the Hyland Cloud Service, as applicable, only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. ACUO AND NILREAD.
2.1 Acuo and Nilread Pricing. If Customer licenses Acuo or Nilread, Customer acknowledges that the pricing for such Software is based upon the number of Studies and Non-DICOM Objects that are generated annually by Customer using such Software, and such pricing will be adjusted based on Customer’s usage. For clarification, the number of Studies and Non-DICOM does not include any pre-existing Studies that are migrated into the Software.
2.2 Acuo and Nilread Reporting. Commencing on the first anniversary of the Effective Date and each anniversary thereafter, Customer shall promptly either (a) provide to Hyland reasonable access to the Software to enable Hyland to report to Customer in writing the number of Studies and Non-DICOM Objects generated by Customer during the reporting period identified by Hyland (the “Hyland Reported Number”) or (b) provide written attestation to the number of Studies and Non-DICOM Objects generated by Customer during the reporting period identified by Hyland (the “Customer Reported Number”) (the Hyland Reported Number and Customer Reported Number shall collectively be referred to as the “Reported Number”). The parties shall have the right to review and object in writing to such Reported Number. If either party objects to the Reported Number, the parties shall cooperate in good faith to attempt to resolve the dispute substantially in the manner described in the ‘Resolution of Invoice Disputes’ provision in the General Terms Schedule. As used herein, the number of Studies and Non-DICOM Objects resulting from the process described above shall be final and binding upon Hyland and Customer.
3. PAYMENT TERMS. Customer shall pay to Hyland any fees described in this Healthcare Schedule in such amounts as invoiced by Hyland and in accordance with the General Terms Schedule.
4. TERM; TERMINATION. This Healthcare Schedule will be in effect for so long as the Schedule that governs the Customer’s access to the Software is in effect, and will terminate upon any termination or expiration of such Schedule.
5. CONTROLLING LANGUAGE. Hyland may make other versions of this Healthcare Schedule available in other languages at this online location. This English language version of this Healthcare Schedule controls over any version of the Healthcare Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Healthcare Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Healthcare Schedule that may be made available at this online location in another language.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective July 8th 2022 to June 3rd 2023
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HEALTHCARE SCHEDULE
This Healthcare Schedule (“Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
Effective July 7th 2022 to July 8th 2022
DownloadTable of Contents
HEALTHCARE SCHEDULE
This Healthcare Schedule (“Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
Effective March 4th 2022 to July 7th 2022
DownloadTable of Contents
HEALTHCARE SCHEDULE - SUBSCRIPTION
This Healthcare Schedule (“Healthcare Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Ambulatory Surgery Centers” means a facility that performs outpatient surgery and/or procedures (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite fees as described in the Healthcare Customer Schedule.
“Community Connect Physician Practice” means a physician practice (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Schedule.
“Community Connect User(s)” means: Small Community Connect Hospital(s); Community Connect Physician Practice(s); and Ambulatory Surgery Centers.
“Small Community Connect Hospital” means a hospital (i) which has less than two hundred and fifty (250) licensed beds (as most recently reported by Customer for such hospital), (ii) to which Customer grants access to Customer’s EPIC system; and (iii) for which Customer has paid to Hyland the requisite fees as described in this Healthcare Customer Schedule.
1. ADDITIONAL LICENSE TERMS.
1.1 Use by Community Connect User. In addition to the license granted to the Software and Work Products (if applicable) in a Software License and Maintenance Schedule – Subscription and Professional Services Schedule (if applicable), such Software and Work Products may also be used by a Community Connect User solely to manage its own medical records function through Epic.
1.2 Indemnification. Customer understands and agrees that Community Connect Users may use the Software only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. PAYMENT TERMS FOR COMMUNITY CONNECT USERS.
2.1 Subscription Fees for Small Community Connect Hospitals. For each Small Community Connect Hospital to which Customer wishes to grant access to the Software as a Community Connect User, Customer shall pay Subscription Fees in an amount determined by multiplying the number of licensed beds for such Small Community Connect Hospital (at the time of such payment) for such Small Community Connect Hospital) by Hyland’s then-current Small Community Connect Hospital Subscription Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of licensed beds for each Small Community Connect Hospital that is a Community Connect User hereunder. If the number of licensed beds of such Small Community Connect Hospital increases based upon the reports contemplated herein, Customer shall pay additional Subscription Fees to Hyland in an amount equal to the number of such additional licensed beds, multiplied by Hyland’s then-current Small Community Connect Hospital Subscription Fee. Customer may not transfer or reassign license rights between Small Community Connect Hospitals, and shall not be entitled to a refund or credit if the number of licensed beds decreases at any time.
2.2 Subscription Fees for Community Connect Physician Practices. For each Community Connect Physician Practice which Customer wishes to grant access to the Software as a Community Connect User, Customer shall pay additional Subscription Fees in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice Subscription Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of physicians in each Community Connect Physician Practice that is a Community Connect User hereunder. If the number of physicians in such practice increases based upon the reports contemplated herein, Customer shall pay additional Subscription Fees to Hyland in an amount equal to the number of such additional physicians, multiplied by Hyland’s then-current Community Connect Physician Practice Subscription Fee. Customer may not transfer or reassign license rights between Community Connect Physician Practices, and shall not be entitled to a refund or credit if the number of physicians decreases at any time.
2.3 Subscription Fees for Ambulatory Surgery Centers. For each Ambulatory Surgery Center to which Customer wishes to grant access to the Software as a Community Connect User, Customer shall pay additional Subscription Fees in an amount determined by multiplying the number of operating/procedure rooms for such Ambulatory Surgery Center (at the time of such payment) for such Ambulatory Surgery Center by Hyland’s then-current Ambulatory Surgery Center Subscription Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of operating/procedure rooms for each Ambulatory Surgery Center that is a Community Connect User hereunder. If the number of operating/procedure rooms of such Ambulatory Surgery Center increases based upon the reports contemplated herein, Customer shall pay additional Subscription Fees to Hyland in an amount equal to the number of such additional operating/procedure rooms, multiplied by Hyland’s then-current Ambulatory Surgery Center Subscription Fee. Customer may not transfer or reassign license rights between Ambulatory Surgery Centers, and shall not be entitled to a refund or credit if the number of operating/procedure rooms decreases at any time.
3. TERM; TERMINATION. This Healthcare Schedule will be in effect for so long as the Customer’s Software License and Maintenance Schedule – Subscription, and will terminate upon any termination of Customer’s Software License and Maintenance Schedule - Subscription.
Effective October 28th 2021 to March 4th 2022
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HEALTHCARE SCHEDULE - SUBSCRIPTION
This Healthcare Schedule (“Healthcare Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Community Connect Physician Practice” means a physician practice (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite Software license fee and annual maintenance fees as described in this Healthcare Schedule.
“Community Connect User(s)” means Community Connect Physician Practice(s).
1. ADDITIONAL LICENSE TERMS.
1.1 Use by Community Connect User. In addition to the license granted to the Software and Work Products (if applicable) in a Software License and Maintenance Schedule – Subscription and Professional Services Schedule (if applicable), such Software and Work Products may also be used by a Community Connect User solely to manage its own medical records function through Epic.
1.2 Indemnification. Customer understands and agrees that Community Connect Users may use the Software only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. PAYMENT TERMS FOR COMMUNITY CONNECT USERS.
2.1 Subscription Fees. For each Community Connect Physician Practice which Customer wishes to grant access to the Software as a Community Connect User, Customer shall pay additional Subscription Fees in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice Subscription Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of physicians in each Community Connect Physician Practice that is a Community Connect User hereunder. If the number of physicians in such practice increases, Customer shall pay additional Subscription Fees to Hyland in an amount equal to the number of such additional physicians, multiplied by Hyland’s then-current Community Connect Physician Practice Subscription Fee. Customer may not transfer or reassign license rights between Community Connect Physician Practices, and shall not be entitled to a refund or credit if the number of physicians decreases at any time.
3. TERM; TERMINATION. This Healthcare Schedule will be in effect for so long as the Customer’s Software License and Maintenance Schedule – Subscription, and will terminate upon any termination of Customer’s Software License and Maintenance Schedule - Subscription.
Effective October 27th 2021 to October 28th 2021
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HEALTHCARE SCHEDULE - SUBSCRIPTION
This Healthcare Schedule (“Healthcare Schedule”) forms a part of the Hyland Master Agreement or any other agreement entered into between Customer and Hyland (the “Agreement”) which incorporates this Healthcare Schedule by reference.
All capitalized terms used in this Healthcare Schedule shall have the meaning ascribed them in this Healthcare Schedule or, if not defined in this Healthcare Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Healthcare Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Community Connect Physician Practice” means a physician practice (i) to which Customer grants access to Customer’s EPIC system; and (ii) for which Customer has paid to Hyland the requisite Software license fee and annual maintenance fees as described in this Healthcare Schedule.
“Community Connect User(s)” means Community Connect Physician Practice(s).
1. ADDITIONAL LICENSE TERMS.
1.1 Use by Community Connect User. In addition to the license granted to the Software and Work Products (if applicable) in a Software License and Maintenance Schedule – Subscription and Professional Services Schedule (if applicable), such Software and Work Products may also be used by a Community Connect User solely to manage its own medical records function through Epic.
1.2 Indemnification. Customer understands and agrees that Community Connect Users may use the Software only in compliance with the terms of the Agreement, and that Customer shall indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including, but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by Hyland and arise from or in connection with the breach or noncompliance with the terms of the Agreement by any Community Connect User.
2. PAYMENT TERMS FOR COMMUNITY CONNECT USERS.
2.1 Subscription Fees. For each Community Connect Physician Practice which Customer wishes to grant access to the Software as a Community Connect User, Customer shall pay additional Subscription Fees in an amount determined by multiplying the number of physicians in such practice (at the time of such payment) by Hyland’s then-current Community Connect Physician Practice Subscription Fee. Thereafter, from time to time, but no less than annually, Customer shall report to Hyland the number of physicians in each Community Connect Physician Practice that is a Community Connect User hereunder. If the number of physicians in such practice increases, Customer shall pay additional Subscription Fees to Hyland in an amount equal to the number of such additional physicians, multiplied by Hyland’s then-current Community Connect Physician Practice Subscription Fee. Customer may not transfer or reassign license rights between Community Connect Physician Practices, and shall not be entitled to a refund or credit if the number of physicians decreases at any time.
3. TERM; TERMINATION. This Healthcare Schedule will be in effect for so long as the Customer’s Software License and Maintenance Schedule – Subscription, and will terminate upon any termination of Customer’s Software License and Maintenance Schedule - Subscription.
Global Customer Data Processing Schedule
Effective June 30th 2023
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GLOBAL DATA PROCESSING SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Global Data Processing Schedule (this “DPA”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this DPA by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this DPA.
1. DEFINITIONS
All capitalized terms used in this DPA shall have the meaning ascribed them in this DPA or, if not defined in this DPA, the General Terms Schedule. If any capitalized terms used herein are not defined in this DPA or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this DPA, this DPA shall be interpreted to include all definitions, as the context requires.
“Adequacy Determination” means a final determination by a Regulator that the laws of a third country provide an adequate level of protection for Personal Data when that Personal Data is transferred from the jurisdiction of the governmental authority to a third country.
“Customer Personal Data” means any Personal Data submitted by or on behalf of Customer to Hyland for the performance of Services.
"Data Protection Law(s)" means any applicable law, regulation, legislation, or directive applicable to the Processing of Personal Data.
“Data Subject” means an identified or identifiable natural person as defined by applicable Data Protection Law.
“EU SCCs” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to third countries.
“Personal Data” means any individually identifiable information relating to a Data Subject which is protected under applicable Data Protection Law.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, disclosure or access to Customer Personal Data.
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Regulator” means the competent supervisory authority or regulatory body under applicable Data Protection Law.
“Services” means technical support services, professional services, services relating to Hyland’s hosted offering, or other applicable services provided by Hyland to Customer as defined in the Incorporating Document.
“Sub-Processor,” means an entity that Processes Personal Data at the request of Hyland.
2. HYLAND’S PROCESSING OF PERSONAL DATA
2.1 Instructions for Processing Personal Data. Hyland shall only Process Customer Personal Data for the purposes of performing its obligations under the Agreement and in accordance with Appendix A, unless otherwise required by law. Each Party shall comply with the obligations that apply to it under the Data Protection Laws.
2.2 Duration of Processing. Hyland shall Process Personal Data only for the duration set out in Appendix A.
3. HYLAND’S SAFEGUARDS FOR PERSONAL DATA
3.1 Physical, Technical And Organizational Safeguards. Maintain appropriate technical and organisational security measures designed to protect Customer Personal Data from accidental or unlawful destruction, loss, alteration, disclosure, or access, as more fully described in Appendix B.
3.2 Processing By Sub-Processors. Hyland shall only engage those Sub-Processors, listed at https://community.hyland.com/en/connect/hyland-sub-processor-list (as may be updated by Hyland from time to time without amendment of this DPA). Hyland has entered into a written agreement with each Sub-Processor containing data protection obligations to protect Customer Personal Data no less protective of Data Subjects than those required by applicable Data Protection Law. Hyland shall remain liable to Customer for the acts or omissions of its Sub-Processors. Hyland shall provide Customer notification of any new sub-processors that Hyland intends to engage by updating such webpage, to which Customer can subscribe, with the new sub-processor's details. Where such rights are granted by applicable Data Protection Law, Customer may object to any such new Sub-Processor solely on reasonable grounds relating to data protection concerns by notifying Hyland (in accordance with this DPA) of its objection and grounds within 10 days after receipt of Hyland's notice. In the event of such an objection, Hyland may elect to not engage such Sub-Processor to Process Customer Personal Data. If Hyland continues use of such Sub-Processor after Customer’s reasonable objection, then Customer may elect to immediately (without prejudice to accrued fees or other rights under the Agreement) suspend or terminate the portions of the Agreement affected by the use of such Sub-Processor upon notice to Hyland.
3.3 Confidentiality of Personal Data. Hyland shall treat Customer Personal Data as confidential and ensure that Hyland's personnel (including independent contractors) who have access to the Customer Personal Data: (i) have entered into appropriate contractually binding confidentiality undertakings; (ii) are informed of the confidential nature of Customer Personal Data; and (iii) have received appropriate training related to Customer Personal Data;
3.4 Information Technology Audits. Hyland will permit Customer audits in accordance with the Agreement. If the Agreement does not address Customer audits, then where such rights are granted by applicable Data Protection Law, at the Customer’s reasonable request but no more than once per annum, Hyland shall permit Customer to conduct an audit of Hyland’s security and privacy policies and records in relation to the Processing of Customer Personal Data and such other evidence as Customer may reasonably request to demonstrate Hyland's compliance with the requirements of this DPA. To the extent that Customer elects to conduct an audit at Hyland’s physical facility, such audit shall be limited to the physical areas where Processing of Customer Personal Data occurs. Customer is prohibited from distributing or publishing the results of such audit to any third party (except to a competent supervisory authority) without Hyland’s prior written approval. At Hyland’s election and upon prior notice, Customer shall reimburse Hyland’s reasonable costs in relation to any such request at Hyland’s then-current professional services rates (rates list available on request). All such audits shall be subject to the Parties’ confidentiality obligations. Should Customer retain an independent third party to perform an audit, the Parties agree that: (i) prior to such audit, the independent third party and Hyland shall directly enter into appropriate confidentiality provisions; and (ii) any reports or Hyland information collected during such audit can only be used for Customer internal use.
3.5 Return or Destruction of Personal Data. Hyland shall delete or return Customer Personal Data in accordance with the Agreement. If the Agreement does not address the deletion of return of Customer Personal Data, then at the Customer’s written direction, Hyland shall arrange for the prompt and safe return and/or secure permanent destruction of all Customer Personal Data in Hyland’s possession and control, together with all copies (if any) within 28 days of such direction and, where requested by the Customer, certify that such destruction has taken place. Hyland shall continue to extend the protections set forth in this DPA to such Customer Personal Data pending such return and/or destruction.
3.6 Requests Directed to Hyland. To the extent legally permitted, Hyland will notify Customer without undue delay (and in any event within forty-eight (48) hours) following its receipt of: (a) any actual or purported request from (or on behalf of) a Data Subject exercising his rights under Data Protection Laws ("Data Subject Request"); or (b) any correspondence or communication from a Regulator ("Regulator Correspondence"). Unless otherwise required by applicable law, Hyland shall not disclose any Customer Personal Data in response to any such request without Customer's prior written direction.
3.7 Requests For Privacy Impact Assessment Information. At Customer's reasonable request and to the extent Customer does not otherwise have access to the relevant information, Hyland shall provide Customer with reasonable cooperation and assistance necessary to assist Customer to fulfil any obligation on Customer under Data Protection Laws to conduct a privacy impact assessment or data protection impact assessment regarding Customer's use of the Services. At Hyland’s election and upon prior notice, Customer shall reimburse Hyland's reasonable costs in relation to any such request at Hyland's then-current professional services rates (rates list available on request).
3.8 Reporting Personal Data Breach. Hyland will notify the Customer without undue delay upon becoming aware of a Personal Data Breach. Hyland will take reasonable efforts to identify the cause of such Personal Data Breach and take the steps that Hyland deems necessary and reasonable to remediate the cause of the Personal Data Breach. In relation to such Personal Data Breach, Hyland shall further assist Customer, taking into account the information available to Hyland and the nature of its Processing, with Customer’s Personal Data Breach notification obligations under Data Protection Laws. Any notification by Hyland under this subsection shall not be construed as an admission of fault by Hyland.
4. CUSTOMER OBLIGATIONS FOR PERSONAL DATA
4.1 Customer shall, where required to do so by applicable Data Protection Law, make third party notification(s) in an objective manner that does not intentionally or unreasonably bring Hyland into disrepute or otherwise tarnish the reputation of Hyland.
4.2 Customer shall ensure it is not subject to any prohibition or restriction which would: (i) prevent or restrict it from disclosing or transferring the Customer Personal Data to Hyland; (ii) prevent or restrict it from granting Hyland access to the Customer Personal Data; and/or (iii) prevent or restrict Hyland from Processing the Customer Personal Data, in each case as required for Hyland to perform the Services.
4.3 Customer shall ensure that all fair processing notices have been given (and, as applicable, consents obtained) and are sufficient in scope to enable Hyland to Process the Customer Personal in accordance with the Data Protection Laws.
4.4 Customer shall ensure that Customer Personal Data disclosed or transferred to Hyland is only the minimum amount necessary to perform the Services.
4.5 Customer shall ensure implement and maintain reasonable technical and organisational security measures sufficient to prevent unauthorized access to the Services through Customer’s information systems.
4.6 Customer shall have sole responsibility for the accuracy, quality, and legality of the Customer Personal Data provided to Hyland and the means by which Customer acquired the Customer Personal Data.
6. TERM AND TERMINATION
6.1 Term. This DPA shall have a term commencing on the Effective Date and will terminate automatically upon the termination or expiration of the Incorporating Document.
6.4 Effect. Upon termination of this DPA, Hyland shall return or destroy any Customer Personal Data as set forth above.
7. GENERAL PROVISIONS
7.1 Modification. The Parties agree to amend this DPA from time to time as may be necessary to permit the Parties to remain in compliance with applicable Data Protection Laws.
7.2 Conflict. This DPA supersedes any inconsistent provision in any other components of the Agreement and any other existing agreements between the Hyland and Customer with respect to the Parties’ obligations to comply with Data Protection Laws with respect to Customer Personal Data. If there is any conflict between this DPA, other components of the Agreement, and the terms of an applicable Addendum, the terms of the applicable Addendum shall prevail regarding the Personal Data subject to that Addendum.
7.3 Controlling Language. Hyland may make other versions of this DPA available in other languages at this online location. This English language version of this DPA controls over any version of the Global Data Processing Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this DPA is not made available at this online location in the Other Language, this English language version controls over any other version of the DPA that may be made available at this online location in another language.
ADDENDUM I
EEA
The parties agree that transfers of Customer Personal Data from the European Union or Switzerland (collectively the “EEA”) shall be governed by the appropriate EU SCCs (as supplemented by this DPA), which are incorporated herein by reference.
The Parties further agree that the EU SCCs shall be completed as follows:
- Module 2 shall apply unless Customer is a Processor in which case Module 3 will apply.
- Clause 7, the optional docking clause will not apply.
- Clause 9(a), Option 2 will apply. Customer authorizes Hyland to engage Sub-Processors as set forth in this DPA.
- Clause 11, the optional redress language will not apply.
- Clause 17, Option 1 will apply, and the EU SCCs shall be governed by the law specified in the Agreement, provided that law is an EU Member State recognizing third party beneficiaries, otherwise the laws of the Netherlands shall apply.
- Under Clause 18(b), disputes will be resolved before the courts specified under the Agreement, provided those courts are in an EU Member State recognizing third party beneficiaries, otherwise those courts shall be the courts of the Netherlands.
- Annex I of the EU SCCs shall be deemed completed with the information set out in Appendix A.
- Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix B.
- Annex III of the EU SCCs shall be deemed completed with the applicable information set out in Appendix A.
In relation to Personal Data that is protected by the Swiss Federal Act on Data Protection, the EU SCCs will apply as completed herein and as adapted below:
- The Swiss Federal Data Protection and Information Commissioner (“Swiss DPA”) is the exclusive supervisory authority, and each reference to a “supervisory authority” shall be understood to be a reference to the Swiss DPA.
- The term “member state” will not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of enforcing their rights in their place of habitual residence (Switzerland) in accordance with Clause 18 and the choice of law in Clause 17 shall be the applicable Swiss law.
- References to the GDPR and EU SCCs shall include equivalent provisions of the Swiss Federal Act on Data Protection.
Signatures to the Agreement shall constitute all necessary signatures to the EU SCCs, including the Appendices attached thereto.
ADDENDUM II
United Kingdom
Part 1: Tables
TABLE 1: Parties | ||
Start date | Effective Date as defined in the Agreement. | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
Parties’ details | Full legal name: Trading name (if different): Main address (if a company registered address): Official registration number (if any) (company number of similar identifier): | Full legal name: Hyland Trading name (if different): n/a Main address (if a company registered address): As specified in the Agreement Official registration number (if any) (company number of similar identifier): |
Key Contact | Full Name (optional): Job Title: Contact Details including email: | Full Name (optional): Job Title: Global Privacy Officer Contact Details including email: privacy@hyland.com |
Signature (if required for purposes of Section 2) | Signatures to the Agreement shall constitute all necessary signatures to this Addendum II. | Signatures to the Agreement shall constitute all necessary signatures to this Addendum II. |
TABLE 2: Selected SCCs, Modules, and Selected Clauses | |
Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended, including the Appendix Information. |
TABLE 3: Appendix Information | |
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in. | |
Annex 1A: List of Parties: | As described in the Agreement, Appendix A |
Annex 1B: Description of Transfer: | As described in the Agreement, Appendix A |
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: | As described in the Agremenet, Appendix B. |
Annex III: List of Sub-Processors (Modules 2 and 3 only): | https://community.hyland.com/en/connect/hyland-sub-processor-list |
TABLE 4: Ending this Addendum when the Approved Addendum Changes | |
Ending this Addendum when the Approved Addendum Changes | Which Parties may end this Addendum as set out in Section 19: Importer Exporter |
Part 2: Mandatory Clauses
Mandatory Clauses | Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses. |
ADDENDUM III
California, USA
The following additional provisions apply to Hyland’s Processing of the Personal Information that is subject to the CPRA.
Appendix A
Subject Matter and Duration of the Processing | The subject matter of the Processing is Hyland’s fulfilment of its obligations under the Agreement. The duration of the Processing is the term of the Agreement, and any exit period, if applicable. |
Categories of Data Subjects whose Personal Data is Processed | Any Data Subject whose Personal Data is transferred to Hyland under the Agreement, which could include the following categories:
|
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services and otherwise for Hyland’s fulfilment of its obligations under the Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Categories of Personal Data Processed | Any Personal Data submitted by Customer to Hyland under the Agreement. |
Categories of Sensitive Personal Data Processed | ☒No collection of any Sensitive Personal Data by Hyland is anticipated. ☐ Customer will provide the following categories of Sensitive Personal Data to Hyland under the Agreement: |
FOR USE ONLY WITH THE EU SCCS | |
Data Exporter (including country of establishment) | Customer, as defined in this DPA. |
Data Importer (including country of establishment) | Hyland, as defined in this DPA. |
Frequency of the Transfer | Continuous basis (services related to Hyland’s hosted offerings or cloud services); One-off basis (technical support, professional services or other applicable services) |
Retention Period | For hosting or cloud customers, data is retained for the duration of the Agreement, including any applicable transition period subject to any shorter period which Customer may choose by permanently deleted the personal data from the Services. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter. |
Sub-processors | Data importer may use the Sub-processors listed at https://community.hyland.com/en/connect/hyland-sub-processor-list . |
Competent Supervisory Authority | The competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established. |
Appendix B
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement the technical and organisational measures set forth in the Agreement. To the extent the Agreement does not specify the applicable technical and organizational security measures, then Hyland shall implement the technical and organizational security measures set forth in this Appendix B as follows:
1. Measures for encryption
- encryption of mobile devices such as laptops, tablets, smartphones
- encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
- encrypted storage of passwords
- encryption option for sensitive e-mails and e-mail attachments
- secured data sharing (e.g. SSL, FTPS, TLS)
- secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
- access control system, document reader (magnetic / chip card)
- door protections (electric door opener, number lock, etc.)
- protection of facilities, including security guards at Hyland headquarters.
- alarm system
- video surveillance
- special protective measures for the server room
- prohibited areas
- visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
- personal and individual user log-in for registration in the systems or company network
- authorization process for access authorizations
- limitation of authorized users
- single sign-on
- two-factor authentication
- BIOS passwords for corporate laptops
- password procedures (indication of password parameters with regard to complexity and update interval)
- logging of access
- additional system log-in for certain applications
- automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
- firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
- evaluations/logging of data processing
- authorization process for authorizations
- approval routines
- profiles / roles
- encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
- Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
- segregation of functions “segregation of duties”
- destruction of records and storage devices in accordance with NIST 800-88, as applicable
- cyber-related logs retained for no less than six months
3. Measures to ensure integrity
- access rights
- system-side logging
- document management system (DMS) with change history
- security / logging software
- functional responsibilities, organisationally specified responsibilities
- tunnelled remote data connections (VPN = virtual private network)
- electronic signature
- logging of data transfer or data transport
- logging of read accesses
4. Measures to ensure and restore availability
- security concept for software and IT applications
- back-up procedures, as applicable
- ensuring data storage in secured network
- need-based installation of security updates
- set-up of an uninterrupted power supply
- suitable archiving facilities for paper documents
- fire and/or extinguishing water protection for the server room
- air-conditioned server room
- virus protection
- firewall
- business continuity plan
- successful disaster recovery exercises
- redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
- emergency plan in case of machine breakdown / business recovery plan
- redundant power supply
- sufficient capacity of IT systems and plants
- logistically controlled process to avoid power peaks
- redundant systems / plants
- resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
- procedures for regular controls/audits
- concept for regular review, assessment and evaluation
- reporting system
- penetration tests
- emergency tests
- applicable certifications
7. “Control of instructions / assignment control”
- process of issuing and/or following instructions
- specification of contact persons and/or responsible employees
- control / examination that the assignment is executed in accordance with instructions
- training / instruction of all access-authorized employees
- independent auditing of adherence to instructions
- commitment of employees to maintain confidentiality
- agreement on penalties for infringements of instructions
- data protection manager / coordinator
- maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
- documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
- guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
- process for forwarding requests of data subjects
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective January 19th 2023 to June 30th 2023
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GLOBAL DATA PROCESSING SCHEDULE
This Global Data Processing Schedule (“DPA Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the "Agreement") which incorporates this DPA Schedule by reference.
- Module 2 shall apply unless Customer is a Processor in which case Module 3 will apply.
- Clause 7, the optional docking clause will not apply.
- Clause 9(a), Option 2 will apply. Customer authorizes Hyland to engage Sub-Processors as set forth in this DPA.
- Clause 11, the optional redress language will not apply.
- Clause 17, Option 1 will apply, and the EU SCCs shall be governed by the law specified in the Hyland Master Agreement, provided that law is an EU Member State recognizing third party beneficiaries, otherwise the laws of the Netherlands shall apply.
- Under Clause 18(b), disputes will be resolved before the courts specified under the Hyland Master Agreement, provided those courts are in an EU Member State recognizing third party beneficiaries, otherwise those courts shall be the courts of the Netherlands.
- Annex I of the EU SCCs shall be deemed completed with the information set out in Appendix A.
- Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix B.
- Annex III of the EU SCCs shall be deemed completed with the applicable information set out in Appendix A.
- The Swiss Federal Data Protection and Information Commissioner (“Swiss DPA”) is the exclusive supervisory authority, and each reference to a “supervisory authority” shall be understood to be a reference to the Swiss DPA.
- The term “member state” will not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of enforcing their rights in their place of habitual residence (Switzerland) in accordance with Clause 18 and the choice of law in Clause 17 shall be the applicable Swiss law.
- References to the GDPR and EU SCCs shall include equivalent provisions of the Swiss Federal Act on Data Protection.
TABLE 1: Parties | ||
Start date | Effective Date as defined in the Agreement. | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
Parties’ details | Full legal name: Trading name (if different): Main address (if a company registered address): Official registration number (if any) (company number of similar identifier): | Full legal name: Hyland Trading name (if different): n/a Main address (if a company registered address): As specified in the Agreement Official registration number (if any) (company number of similar identifier): |
Key Contact | Full Name (optional): Job Title: Contact Details including email: | Full Name (optional): Job Title: Global Privacy Officer Contact Details including email: privacy@hyland.com |
Signature (if required for purposes of Section 2) | Signatures to the Agreement shall constitute all necessary signatures to this Addendum II. | Signatures to the Agreement shall constitute all necessary signatures to this Addendum II. |
TABLE 2: Selected SCCs, Modules, and Selected Clauses | |
Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended, including the Appendix Information. |
TABLE 3: Appendix Information | |
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in. | |
Annex 1A: List of Parties: | As described in the Agreement, Appendix A |
Annex 1B: Description of Transfer: | As described in the Agreement, Appendix A |
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: | As described in the Agremenet, Appendix B. |
Annex III: List of Sub-Processors (Modules 2 and 3 only): | |
TABLE 4: Ending this Addendum when the Approved Addendum Changes | |
Ending this Addendum when the Approved Addendum Changes | Which Parties may end this Addendum as set out in Section 19: Importer Exporter |
Mandatory Clauses | Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses. |
Subject Matter and Duration of the Processing | The subject matter of the Processing is Hyland’s fulfilment of its obligations under the Hyland Master Agreement. The duration of the Processing is the term of the Hyland Master Agreement, and any exit period, if applicable. |
Categories of Data Subjects whose Personal Data is Processed | Any Data Subject whose Personal Data is transferred to Hyland under the Hyland Master Agreement, which could include the following categories:
|
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services and otherwise for Hyland’s fulfillment of its obligations under the Hyland Master Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Categories of Personal Data Processed | Any Personal Data submitted by Customer to Hyland under the Hyland Master Agreement. |
Categories of Sensitive Personal Data Processed | ☒No collection of any Sensitive Personal Data by Hyland is anticipated. ☐ Customer will provide the following categories of Sensitive Personal Data to Hyland under the Hyland Master Agreement: |
FOR USE ONLY WITH THE EU SCCS | |
Data Exporter (including country of establishment) | Customer, as defined in this DPA. |
Data Importer (including country of establishment) | Hyland, as defined in this DPA. |
Frequency of the Transfer | Continuous basis (services related to Hyland’s hosted offerings or cloud services); One-off basis (technical support, professional services or other applicable services) |
Retention Period | For hosting or cloud customers, data is retained for the duration of the Hyland Master Agreement, including any applicable transition period subject to any shorter period which Customer may choose by permanently deleted the personal data from the Services. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter. |
Sub-processors | Data importer may use the Sub-processors listed at https://community.hyland.com/en/connect/hyland-sub-processor-list. |
Competent Supervisory Authority | The competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established. |
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
- encryption of mobile devices such as laptops, tablets, smartphones
- encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
- encrypted storage of passwords
- encryption option for sensitive e-mails and e-mail attachments
- secured data sharing (e.g. SSL, FTPS, TLS)
- secured WLAN
- access control system, document reader (magnetic / chip card)
- door protections (electric door opener, number lock, etc.)
- protection of facilities, including security guards at Hyland headquarters.
- alarm system
- video surveillance
- special protective measures for the server room
- prohibited areas
- visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
- personal and individual user log-in for registration in the systems or company network
- authorization process for access authorizations
- limitation of authorized users
- single sign-on
- two-factor authentication
- BIOS passwords for corporate laptops
- password procedures (indication of password parameters with regard to complexity and update interval)
- logging of access
- additional system log-in for certain applications
- automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
- firewall
- evaluations/logging of data processing
- authorization process for authorizations
- approval routines
- profiles / roles
- encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
- Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
- segregation of functions “segregation of duties”
- destruction of records and storage devices in accordance with NIST 800-88, as applicable
- cyber-related logs retained for no less than six months
- access rights
- system-side logging
- document management system (DMS) with change history
- security / logging software
- functional responsibilities, organisationally specified responsibilities
- tunnelled remote data connections (VPN = virtual private network)
- electronic signature
- logging of data transfer or data transport
- logging of read accesses
- security concept for software and IT applications
- back-up procedures, as applicable
- ensuring data storage in secured network
- need-based installation of security updates
- set-up of an uninterrupted power supply
- suitable archiving facilities for paper documents
- fire and/or extinguishing water protection for the server room
- air-conditioned server room
- virus protection
- firewall
- business continuity plan
- successful disaster recovery exercises
- redundant, locally separated data storage (off-site storage), as applicable
- emergency plan in case of machine breakdown / business recovery plan
- redundant power supply
- sufficient capacity of IT systems and plants
- logistically controlled process to avoid power peaks
- redundant systems / plants
- resilience and error management
- procedures for regular controls/audits
- concept for regular review, assessment and evaluation
- reporting system
- penetration tests
- emergency tests
- applicable certifications
- process of issuing and/or following instructions
- specification of contact persons and/or responsible employees
- control / examination that the assignment is executed in accordance with instructions
- training / instruction of all access-authorized employees
- independent auditing of adherence to instructions
- commitment of employees to maintain confidentiality
- agreement on penalties for infringements of instructions
- data protection manager / coordinator
- maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
- documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
- guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
- process for forwarding requests of data subjects
Effective January 19th 2023 to January 19th 2023
DownloadTable of Contents
GLOBAL DATA PROCESSING SCHEDULE
This Global Data Processing Schedule (“DPA Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the "Agreement") which incorporates this DPA Schedule by reference.
- Module 2 shall apply unless Customer is a Processor in which case Module 3 will apply.
- Clause 7, the optional docking clause will not apply.
- Clause 9(a), Option 2 will apply. Customer authorizes Hyland to engage Sub-Processors as set forth in this DPA.
- Clause 11, the optional redress language will not apply.
- Clause 17, Option 1 will apply, and the EU SCCs shall be governed by the law specified in the Hyland Master Agreement, provided that law is an EU Member State recognizing third party beneficiaries, otherwise the laws of the Netherlands shall apply.
- Under Clause 18(b), disputes will be resolved before the courts specified under the Hyland Master Agreement, provided those courts are in an EU Member State recognizing third party beneficiaries, otherwise those courts shall be the courts of the Netherlands.
- Annex I of the EU SCCs shall be deemed completed with the information set out in Appendix A.
- Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix B.
- Annex III of the EU SCCs shall be deemed completed with the applicable information set out in Appendix A.
- The Swiss Federal Data Protection and Information Commissioner (“Swiss DPA”) is the exclusive supervisory authority, and each reference to a “supervisory authority” shall be understood to be a reference to the Swiss DPA.
- The term “member state” will not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of enforcing their rights in their place of habitual residence (Switzerland) in accordance with Clause 18 and the choice of law in Clause 17 shall be the applicable Swiss law.
- References to the GDPR and EU SCCs shall include equivalent provisions of the Swiss Federal Act on Data Protection.
TABLE 1: Parties | ||
Start date | Effective Date as defined in the Agreement. | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
Parties’ details | Full legal name: Trading name (if different): Main address (if a company registered address): Official registration number (if any) (company number of similar identifier): | Full legal name: Hyland Trading name (if different): n/a Main address (if a company registered address): As specified in the Agreement Official registration number (if any) (company number of similar identifier): |
Key Contact | Full Name (optional): Job Title: Contact Details including email: | Full Name (optional): Job Title: Global Privacy Officer Contact Details including email: privacy@hyland.com |
Signature (if required for purposes of Section 2) | Signatures to the Agreement shall constitute all necessary signatures to this Addendum II. | Signatures to the Agreement shall constitute all necessary signatures to this Addendum II. |
TABLE 2: Selected SCCs, Modules, and Selected Clauses | |
Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended, including the Appendix Information. |
TABLE 3: Appendix Information | |
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in. | |
Annex 1A: List of Parties: | As described in the Agreement, Appendix A |
Annex 1B: Description of Transfer: | As described in the Agreement, Appendix A |
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: | As described in the Agremenet, Appendix B. |
Annex III: List of Sub-Processors (Modules 2 and 3 only): | |
TABLE 4: Ending this Addendum when the Approved Addendum Changes | |
Ending this Addendum when the Approved Addendum Changes | Which Parties may end this Addendum as set out in Section 19: Importer Exporter |
Mandatory Clauses | Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses. |
Subject Matter and Duration of the Processing | The subject matter of the Processing is Hyland’s fulfilment of its obligations under the Hyland Master Agreement. The duration of the Processing is the term of the Hyland Master Agreement, and any exit period, if applicable. |
Categories of Data Subjects whose Personal Data is Processed | Any Data Subject whose Personal Data is transferred to Hyland under the Hyland Master Agreement, which could include the following categories:
|
Nature and Purpose of the Processing | The purpose of the Processing is to provide the Services and otherwise for Hyland’s fulfillment of its obligations under the Hyland Master Agreement. The nature of the Processing may include, but is not limited to, collection, recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
Categories of Personal Data Processed | Any Personal Data submitted by Customer to Hyland under the Hyland Master Agreement. |
Categories of Sensitive Personal Data Processed | ☒No collection of any Sensitive Personal Data by Hyland is anticipated. ☐ Customer will provide the following categories of Sensitive Personal Data to Hyland under the Hyland Master Agreement: |
FOR USE ONLY WITH THE EU SCCS | |
Data Exporter (including country of establishment) | Customer, as defined in this DPA. |
Data Importer (including country of establishment) | Hyland, as defined in this DPA. |
Frequency of the Transfer | Continuous basis (services related to Hyland’s hosted offerings or cloud services); One-off basis (technical support, professional services or other applicable services) |
Retention Period | For hosting or cloud customers, data is retained for the duration of the Hyland Master Agreement, including any applicable transition period subject to any shorter period which Customer may choose by permanently deleted the personal data from the Services. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter. |
Sub-processors | Data importer may use the Sub-processors listed at https://community.hyland.com/en/connect/hyland-sub-processor-list. |
Competent Supervisory Authority | The competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established. |
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
- encryption of mobile devices such as laptops, tablets, smartphones
- encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
- encrypted storage of passwords
- encryption option for sensitive e-mails and e-mail attachments
- secured data sharing (e.g. SSL, FTPS, TLS)
- secured WLAN
- access control system, document reader (magnetic / chip card)
- door protections (electric door opener, number lock, etc.)
- protection of facilities, including security guards at Hyland headquarters.
- alarm system
- video surveillance
- special protective measures for the server room
- prohibited areas
- visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
- personal and individual user log-in for registration in the systems or company network
- authorization process for access authorizations
- limitation of authorized users
- single sign-on
- two-factor authentication
- BIOS passwords for corporate laptops
- password procedures (indication of password parameters with regard to complexity and update interval)
- logging of access
- additional system log-in for certain applications
- automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
- firewall
- evaluations/logging of data processing
- authorization process for authorizations
- approval routines
- profiles / roles
- encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
- Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
- segregation of functions “segregation of duties”
- destruction of records and storage devices in accordance with NIST 800-88, as applicable
- cyber-related logs retained for no less than six months
- access rights
- system-side logging
- document management system (DMS) with change history
- security / logging software
- functional responsibilities, organisationally specified responsibilities
- tunnelled remote data connections (VPN = virtual private network)
- electronic signature
- logging of data transfer or data transport
- logging of read accesses
- security concept for software and IT applications
- back-up procedures, as applicable
- ensuring data storage in secured network
- need-based installation of security updates
- set-up of an uninterrupted power supply
- suitable archiving facilities for paper documents
- fire and/or extinguishing water protection for the server room
- air-conditioned server room
- virus protection
- firewall
- business continuity plan
- successful disaster recovery exercises
- redundant, locally separated data storage (off-site storage), as applicable
- emergency plan in case of machine breakdown / business recovery plan
- redundant power supply
- sufficient capacity of IT systems and plants
- logistically controlled process to avoid power peaks
- redundant systems / plants
- resilience and error management
- procedures for regular controls/audits
- concept for regular review, assessment and evaluation
- reporting system
- penetration tests
- emergency tests
- applicable certifications
- process of issuing and/or following instructions
- specification of contact persons and/or responsible employees
- control / examination that the assignment is executed in accordance with instructions
- training / instruction of all access-authorized employees
- independent auditing of adherence to instructions
- commitment of employees to maintain confidentiality
- agreement on penalties for infringements of instructions
- data protection manager / coordinator
- maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
- documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
- guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
- process for forwarding requests of data subjects
Effective June 8th 2022 to January 19th 2023
DownloadTable of Contents
GDPR DATA PROCESSING SCHEDULE
This GDPR Data Processing Schedule (“DPA”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the "Agreement") which incorporates this DPA Schedule by reference.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
The following terms shall have the meanings set forth in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set our in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Related Agreements.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable modules within the EU Model Clauses are MODULE TWO (Transfer Controller to Processor) and/or MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller) nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means technical support services, professional services, services relating to Hyland’s hosted offering or cloud service, or other applicable services provided by Hyland to Customer in relation to Hyland’s software offerings, as defined in the Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(e).
and the remaining details required under the Article 28 Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement.
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II.
Appendix A
Data exporter(s):
Name: Customer, as defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Purchase of content management software licenses and related services and support
Signature and date:
Role (controller / processor): Controller and/or Processor
Data importer(s):
Name: Hyland, As defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in this DPA.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Agreement, which may include the following categories :
* Customer Employees (Past, potential, present and future staff of Customer)
* Customer Vendors (Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Customer and related staff.)
* Customers End Users (Past, present and potential users of Customer services or products)
Categories of personal data transferred:
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
* Continuous basis (services related to Hyland’s hosted offerings or cloud services);
* One-off basis (technical support, professional services or other applicable services)
Nature of the processing
Purpose(s) of the data transfer and further processing
* To provide the Services set forth in the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
* For hosting or cloud customers, data is retained for the duration of the Agreement, including any applicable transition period. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Unless otherwise stated in the DPA, the competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established.
Appendix B
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Agreement and as follows:
- Measures for encryption
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
Effective December 7th 2021 to June 8th 2022
DownloadTable of Contents
GDPR DATA PROCESSING SCHEDULE
This GDPR Data Processing Schedule (“DPA”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the "Agreement") which incorporates this DPA Schedule by reference.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
The following terms shall have the meanings set forth in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set our in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Related Agreements.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable modules within the EU Model Clauses are MODULE TWO (Transfer Controller to Processor) and/or MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller) nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means technical support services, professional services, services relating to Hyland’s hosted offering or cloud service, or other applicable services provided by Hyland to Customer in relation to Hyland’s software offerings, as defined in the Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(e).
and the remaining details required under the Article 28 Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement.
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II.
Appendix A
Data exporter(s):
Name: Customer, as defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Purchase of content management software licenses and related services and support
Signature and date:
Role (controller / processor): Controller and/or Processor
Data importer(s):
Name: Hyland, As defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in this DPA.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Agreement, which may include the following categories :
* Customer Employees (Past, potential, present and future staff of Customer)
* Customer Vendors (Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Customer and related staff.)
* Customers End Users (Past, present and potential users of Customer services or products)
Categories of personal data transferred:
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
* Continuous basis (services related to Hyland’s hosted offerings or cloud services);
* One-off basis (technical support, professional services or other applicable services)
Nature of the processing
Purpose(s) of the data transfer and further processing
* To provide the Services set forth in the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
* For hosting or cloud customers, data is retained for the duration of the Agreement, including any applicable transition period. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Unless otherwise stated in the DPA, the competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established.
Appendix B
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Agreement and as follows:
- Measures for encryption
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
Effective October 28th 2021 to December 7th 2021
DownloadTable of Contents
GDPR DATA PROCESSING SCHEDULE
As of the Effective Date, this GDPR Data Processing Schedule (“DPA”) is part of the Hyland Master Agreement entered into between Customer and Hyland.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
The following terms shall have the meanings set forth in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set our in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Related Agreements.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable modules within the EU Model Clauses are MODULE TWO (Transfer Controller to Processor) and/or MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller) nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means technical support services, professional services, services relating to Hyland’s hosted offering or cloud service, or other applicable services provided by Hyland to Customer in relation to Hyland’s software offerings, as defined in the Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(e).
and the remaining details required under the Article 28 Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement.
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II.
Appendix A
Data exporter(s):
Name: Customer, as defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Purchase of content management software licenses and related services and support
Signature and date:
Role (controller / processor): Controller and/or Processor
Data importer(s):
Name: Hyland, As defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in this DPA.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Agreement, which may include the following categories :
* Customer Employees (Past, potential, present and future staff of Customer)
* Customer Vendors (Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Customer and related staff.)
* Customers End Users (Past, present and potential users of Customer services or products)
Categories of personal data transferred:
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
* Continuous basis (services related to Hyland’s hosted offerings or cloud services);
* One-off basis (technical support, professional services or other applicable services)
Nature of the processing
Purpose(s) of the data transfer and further processing
* To provide the Services set forth in the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
* For hosting or cloud customers, data is retained for the duration of the Agreement, including any applicable transition period. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Unless otherwise stated in the DPA, the competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established.
Appendix B
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Agreement and as follows:
- Measures for encryption
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
Effective October 28th 2021 to October 28th 2021
DownloadTable of Contents
GDPR DATA PROCESSING SCHEDULE
As of the Effective Date, this GDPR Data Processing Schedule (“DPA”) is part of the Hyland Master Agreement entered into between Customer and Hyland.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
The following terms shall have the meanings set forth in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set our in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Related Agreements.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable modules within the EU Model Clauses are MODULE TWO (Transfer Controller to Processor) and/or MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller) nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means technical support services, professional services, services relating to Hyland’s hosted offering or cloud service, or other applicable services provided by Hyland to Customer in relation to Hyland’s software offerings, as defined in the Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(e).
and the remaining details required under the Article 28 Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement.
and the remaining details required under the EU Model Clauses being deemed completed as appropriate with the information set out in this DPA (including without limitation the Appendices) and the Agreement. For the avoidance of doubt, for purposes of the EU Model Clauses, Appendix A of this DPA shall serve as Annex I and Appendix B shall serve as Annex II.
Appendix A
Data exporter(s):
Name: Customer, as defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Purchase of content management software licenses and related services and support
Signature and date:
Role (controller / processor): Controller and/or Processor
Data importer(s):
Name: Hyland, As defined in the Agreement
Address: As specified in the Agreement
Contact person’s name, position, and contact details: As specified in the Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in this DPA.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Agreement, which may include the following categories :
* Customer Employees (Past, potential, present and future staff of Customer)
* Customer Vendors (Past, present and potential advisors, consultants, vendors, contractors, subcontractors and other professionals engaged by Customer and related staff.)
* Customers End Users (Past, present and potential users of Customer services or products)
Categories of personal data transferred:
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
* Continuous basis (services related to Hyland’s hosted offerings or cloud services);
* One-off basis (technical support, professional services or other applicable services)
Nature of the processing
Purpose(s) of the data transfer and further processing
* To provide the Services set forth in the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
* For hosting or cloud customers, data is retained for the duration of the Agreement, including any applicable transition period. Personal data provided to Hyland during the performance of technical support or professional services is retained for no longer than necessary for the purposes for which the Personal Data was transferred and, in no event, longer than permitted under the laws of the country of the data exporter.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Unless otherwise stated in the DPA, the competent supervisory authority is the supervisory authority of the EU/EEA Member State where the Data Exporter is established.
Appendix B
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Agreement and as follows:
- Measures for encryption
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
GDPR Partner Data Processing Schedule
Effective December 7th 2021
DownloadTable of Contents
Privileged & Confidential
Discussion Draft: September 4, 2021
This GDPR Data Processing Schedule (“DPA”) forms a part of the Solution Provider Agreement or any other agreement with Hyland which incorporates this GDPR Data Processing Schedule by reference (the "Solution Provider Agreement"). All capitalized terms not defined here shall have the meaning given to them under the General Terms and Conditions.
AGREEMENT
The following terms shall have the meanings given to them in them in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set out in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Solution Provider Agreement.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable module within the EU Model Clauses is MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller), MODULE TWO (Transfer Controller to Processor), nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means Secondary Support or other applicable services provided by Hyland to Solution Provider as defined in the Solution Provider Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(d).
Appendix A
Data exporter(s):
Name: Solution Provider, as defined in the Solution Provider Agreement
Address: As specified in the Solution Provider Agreement
Contact person’s name, position, and contact details: As specified in the Solution Provider Agreement
Activities relevant to the data transferred under the SCCs: Sale of Hyland propriety software licenses, Professional Services, and Primary Support, as applicable.
Signature and date:
Role (controller / processor): Processor
Data importer(s):
Name: Hyland, as defined in the Solution Provider Agreement
Address: As specified in the Solution Provider Agreement
Contact person’s name, position, and contact details: As specified in the Solution Provider Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in the Solution Provider Agreement.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Related Agreements, which may include the following categories (if checked):
Categories of personal data transferred:
Any Personal Data submitted or made available by the Solution Provider to Hyland in the course of Hyland's Services under the Solution Provider Agreement.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
Purpose(s) of the data transfer and further processing
· To provide the Services set forth in the Solution Provider Agreements.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Solution Provider Agreements and as follows:
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
Effective November 11th 2021 to December 7th 2021
DownloadTable of Contents
Privileged & Confidential
Discussion Draft: September 4, 2021
This GDPR Data Processing Schedule (“DPA”) forms a part of the Solution Provider Agreement or any other agreement with Hyland which incorporates this GDPR Data Processing Schedule by reference (the "Solution Provider Agreement"). All capitalized terms not defined here shall have the meaning given to them under the General Terms and Conditions.
AGREEMENT
The following terms shall have the meanings given to them in them in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set out in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Solution Provider Agreement.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable module within the EU Model Clauses is MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller), MODULE TWO (Transfer Controller to Processor), nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means Secondary Support or other applicable services provided by Hyland to Solution Provider as defined in the Solution Provider Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(d).
Appendix A
Data exporter(s):
Name: Solution Provider, as defined in the Solution Provider Agreement
Address: As specified in the Solution Provider Agreement
Contact person’s name, position, and contact details: As specified in the Solution Provider Agreement
Activities relevant to the data transferred under the SCCs: Sale of Hyland propriety software licenses, Professional Services, and Primary Support, as applicable.
Signature and date:
Role (controller / processor): Processor
Data importer(s):
Name: Hyland, as defined in the Solution Provider Agreement
Address: As specified in the Solution Provider Agreement
Contact person’s name, position, and contact details: As specified in the Solution Provider Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in the Solution Provider Agreement.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Related Agreements, which may include the following categories (if checked):
Categories of personal data transferred:
Any Personal Data submitted or made available by the Solution Provider to Hyland in the course of Hyland's Services under the Solution Provider Agreement.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
Purpose(s) of the data transfer and further processing
· To provide the Services set forth in the Solution Provider Agreements.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Solution Provider Agreements and as follows:
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
Effective November 9th 2021 to November 11th 2021
DownloadTable of Contents
Privileged & Confidential
Discussion Draft: September 4, 2021
This GDPR Data Processing Schedule (“DPA”) is part of the Solution Provider Agreement entered into between Solution Provider and Hyland. All capitalized terms not defined here shall have the meaning given to them under the General Terms and Conditions.
AGREEMENT
The following terms shall have the meanings given to them in them in the Article 28 Model Clauses or the EU Model Clauses, as applicable: “Controller”, “Data Subject”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, and “Processor.” Sensitive Personal Data shall mean the special categories of Personal Data set out in Article 9(1) of the GDPR.
“Article 28 Model Clauses” means the Commission Implementing Decision (EU) 2021/915 on Standard Contractual Clauses Between Controllers and Processors.
“Customer Personal Data” means any Personal Data and Sensitive Personal Data of a Data Subject Processed by (or on behalf of) Hyland during the performance of the Services as set out in the Solution Provider Agreement.
“Data Protection Law” means: (i) Regulation (EU) 2016/679 if the European Parliament and of the Counsel of 27 April 2016 (“GDPR”); (ii) the Swiss Federal Data Protection Act; and (iii) any and all applicable national data protection laws made under or pursuant to (i), (ii), or (iii) in each case as may be amended or superseded from time to time.
“EU Model Clauses” means the Commission Implementing Decision (EU) 2021/914 establishing Standard Contractual Clauses for data transfers to Third Countries. For purposes of this DPA, the applicable module within the EU Model Clauses is MODULE THREE (Transfer Processor to Processor). For the avoidance of doubt, neither MODULE ONE (Transfer Controller to Controller), MODULE TWO (Transfer Controller to Processor), nor MODULE FOUR (Transfer Processor to Controller) shall apply to this DPA.
“Services” means Secondary Support or other applicable services provided by Hyland to Solution Provider as defined in the Solution Provider Agreement.
“Sub-Processor,” means an entity engaged by Hyland to perform certain services as described in Section 3(d).
Appendix A
Data exporter(s):
Name: Solution Provider, as defined in the Solution Provider Agreement
Address: As specified in the Solution Provider Agreement
Contact person’s name, position, and contact details: As specified in the Solution Provider Agreement
Activities relevant to the data transferred under the SCCs: Sale of Hyland propriety software licenses, Professional Services, and Primary Support, as applicable.
Signature and date:
Role (controller / processor): Processor
Data importer(s):
Name: Hyland as defined in this DPA
Address: As specified in the Solution Provider Agreement
Contact person’s name, position, and contact details: As specified in the Solution Provider Agreement
Activities relevant to the data transferred under the SCCs: Services, as defined in the Solution Provider Agreement.
Signature and date:
Role (controller / processor): Processor
Description of transfer:
Categories of data subjects whose personal data is transferred:
Any data subject whose personal data is transferred to Hyland in the course of Hyland’s Services under the Related Agreements, which may include the following categories (if checked):
Categories of personal data transferred:
Any Personal Data submitted or made available by the Solution Provider to Hyland in the course of Hyland's Services under the Solution Provider Agreement.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
Purpose(s) of the data transfer and further processing
· To provide the Services set forth in the Solution Provider Agreements.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Competent supervisory authority
Technical and organizational measures
Taking into account:
- the state of the art,
- the costs of implementation and
- the nature, scope, context and
- the purpose of processing as well as
- the risk of varying likelihood and severity for the rights and freedoms of natural persons
Hyland shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk, including those security measures set forth in the Solution Provider Agreements and as follows:
☒ encryption of mobile devices such as laptops, tablets, smartphones
☒ encryption of mobile storage media (CD/DVD- ROM, USB sticks, external hard drives)
☒ encrypted storage of passwords
☒ encryption option for sensitive e-mails and e-mail attachments
☒ secured data sharing (e.g. SSL, FTPS, TLS)
☒ secured WLAN
2. Measures to ensure confidentiality
a. Measures which ensure that unauthorized persons do not have access to Customer Personal Data:
☒ access control system, document reader (magnetic / chip card)
☒ door protections (electric door opener, number lock, etc.)
☒ protection of facilities, including security guards at Hyland headquarters.
☒ alarm system
☒ video surveillance
☒ special protective measures for the server room
☒ prohibited areas
☒ visitor rules (e.g. pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)
b. Measures which prevent that unauthorized persons can use the systems that process Customer Personal Data:
☒ personal and individual user log-in for registration in the systems or company network
☒ authorization process for access authorizations
☒ limitation of authorized users
☒ single sign-on
☒ two-factor authentication
☒ BIOS passwords for corporate laptops
☒ password procedures (indication of password parameters with regard to complexity and update interval)
☒ logging of access
☒ additional system log-in for certain applications
☒ automatic locking of the clients after expiry of a certain period without user activity (also password-protected screensaver or automatic stand-by)
☒ firewall
c. Measures which ensure that only authorized persons have access to the systems that Process Customer Personal Data and that Customer Personal Data cannot be read, copied, modified or removed without authorization:
☒ evaluations/logging of data processing
☒ authorization process for authorizations
☒ approval routines
☒ profiles / roles
☒ encryption at rest and in transit for Customer Personal Data transferred to Hyland via its secure file transfer tool.
☒ Mobile Device Management system for corporate owned mobile devices and approved personal mobile devices (mobile devices are not part of the hosted solution)
☒ segregation of functions “segregation of duties”
☒ destruction of records and storage devices in accordance with NIST 800-88, as applicable
☒ cyber-related logs retained for no less than six months
3. Measures to ensure integrity
☒ access rights
☒ system-side logging
☒ document management system (DMS) with change history
☒ security / logging software
☒ functional responsibilities, organisationally specified responsibilities
☒ tunnelled remote data connections (VPN = virtual private network)
☒ electronic signature
☒ logging of data transfer or data transport
☒ logging of read accesses
4. Measures to ensure and restore availability
☒ security concept for software and IT applications
☒ back-up procedures, as applicable
☒ ensuring data storage in secured network
☒ need-based installation of security updates
☒ set-up of an uninterrupted power supply
☒ suitable archiving facilities for paper documents
☒ fire and/or extinguishing water protection for the server room
☒ air-conditioned server room
☒ virus protection
☒ firewall
☒ business continuity plan
☒ successful disaster recovery exercises
☒ redundant, locally separated data storage (off-site storage), as applicable
5. Measures to ensure resilience
☒ emergency plan in case of machine breakdown / business recovery plan
☒ redundant power supply
☒ sufficient capacity of IT systems and plants
☒ logistically controlled process to avoid power peaks
☒ redundant systems / plants
☒ resilience and error management
6. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organisational measures
☒ procedures for regular controls/audits
☒ concept for regular review, assessment and evaluation
☒ reporting system
☒ penetration tests
☒ emergency tests
☒ applicable certifications
7. “Control of instructions / assignment control”
☒ process of issuing and/or following instructions
☒ specification of contact persons and/or responsible employees
☒ control / examination that the assignment is executed in accordance with instructions
☒ training / instruction of all access-authorized employees
☒ independent auditing of adherence to instructions
☒ commitment of employees to maintain confidentiality
☒ agreement on penalties for infringements of instructions
☒ data protection manager / coordinator
☒ maintain records of processing activities in accordance with art. 30, para. 2 GDPR, as applicable
☒ documented Security Incident Response Policy, which includes escalation processes for Personal Data Breaches
☒ guidelines / instructions designed to ensure technical-organisational measures for the security of the processing
☒ process for forwarding requests of data subjects
Service Class Manual - Partner Contracts with Customer
Amendment for Customer Repository Access (Maven)
Effective January 26th 2022
DownloadTable of Contents
Amendment to Underlying License Agreement
This Amendment to Underlying License Agreement (“Amendment”) is made and entered into effective as of the date that Customer has executed the same (as indicated by the date entered by its signature below) (the “Amendment Effective Date”), by and between the Hyland entity that executed the Underlying License Agreement (hereinafter referred to as “Hyland”), and the Customer that executes this Amendment, (hereinafter referred to as “Customer) and amends that certain separate contract that governs the licenses to the Alfresco Software previously procured by Customer from Hyland (such as an End User License Agreement (whether written or presented by an authorized solution provider of Hyland), Alfresco Master Agreement or other similar agreement addressing Software license terms, including when such terms were incorporated by reference in a separate Order Form or other similar document) (the “Underlying License Agreement”).
1. DEFINED TERMS: Capitalized terms used in this Amendment and not defined in this Amendment are used herein with the same meanings as such terms have under the Underlying License Agreement. From and after the date of this Amendment, the terms “Agreement” and “Underlying License Agreement” as used in the Underlying License Agreement and as used in this Amendment shall mean and refer to the Underlying License Agreement as amended by this Amendment.
2. CLARIFICATION REGARDING ACCESS TO ALFRESCO REPOSITORY AND REPOSITORY MATERIALS: Notwithstanding any other provisions of the Underlying License Agreement or any associated Order Form(s), Customer acknowledges and agrees as follows:
(a) Hyland shall from time to time, in its sole discretion, determine the means and extent to which Customer will be afforded access to Hyland’s private Alfresco product technology repository, (the “Repository”). All materials contained in or accessible through the Repository (which may include, but are not limited to, Software source code, Software object code, proprietary data structures, non-public service calls, proprietary Software extensions and connectors, tools to create Software extensions and connectors, and Software Development Kits (“SDKs”)) constitute Confidential Information of Hyland and are proprietary to Hyland.
(b) If and to the extent that Hyland at any time affords Customer access to such Repository, Customer will access such Repository and will use the materials contained in or accessible through the Repository, and all elements and components of such materials, (collectively, the “Repository Materials”) solely in connection with exercising Customer’s rights under the Underlying License Agreement. Subject to the following and notwithstanding anything to the contrary, Customer is not authorized under the terms of the Underlying License Agreement, to modify any Repository Materials, or make any use of the Repository Materials for Customer’s own or any third party’s development purposes.
(c) Customer acknowledges and agrees that it may use the Repository Materials solely for the purposes of implementing the Software, troubleshooting performance of the Software, configuring the Software, and developing integrations and connectors to the Software in connection with Customer’s solution; and with respect to any such source code or object code made available in the Repository Materials, Customer shall not modify or change the Software source code or object code. If Customer makes any changes to any Software source code or object code, Hyland’s support and maintenance obligations, warranties, intellectual property indemnification obligations (if any), and the like shall promptly cease and terminate. Further, Customer shall not modify the source code or object code or create any mechanism that in any way circumvents the licensing structure of the Software (e.g. circumvents the number of licensed users or licensing based on volume or number of transactions).
(d) All license restrictions and confidentiality obligations set forth in the Underlying License Agreement shall apply, with equal force and effect, to all Repository Materials.
(e) Customer will not provide, make available, or otherwise permit any access to or use of the Repository or any Repository Materials by any third parties.
(f) Violation of the foregoing provisions by Customer or any agent, employee, subcontractor, or customer of Customer shall constitute a material breach by Customer of the Underlying License Agreement.
(g) Hyland may, in its sole discretion, limit, suspend, or discontinue Customer’s access to the Repository and/or any or all Repository Materials at any time.
(h) Customer acknowledges and agrees that, in the event of any expiration or termination of the Underlying License Agreement, Customer shall have no right to make any use of the Repository Materials, and all such Repository Materials must be promptly returned to Hyland or destroyed (and certified in writing as such) by Customer to Hyland. Notwithstanding the expiration or termination of the Underlying License Agreement, Customer agrees to treat the Repository Materials received as confidential into perpetuity, and the limitations of use and requirements of confidentiality set forth in the Underlying License Agreement will survive with respect to the Repository Materials, after the expiration or termination of the Underlying License Agreement and the return or destruction of the Repository Materials.
3. OTHER TERMS UNAFFECTED: All terms, provisions and obligations of the parties contained in the Underlying License Agreement not specifically modified herein shall remain in full force and effect.
IN WITNESS WHEREOF, Customer has executed this Amendment as of the day and year set forth after its name below:
CUSTOMER __________________________________ |
Print Name: ________________________ |
Title: _______________________________ |
Date: _______________________________ By: _________________________________ |
Amendment for Partner Repository Acces (Maven)
Effective January 31st 2022
DownloadTable of Contents
Amendment to Partner Agreement
This Amendment to Partner Agreement (“Amendment”) is made and entered into effective as of the date that Partner has executed the same (as indicated by its signature below) (the “Amendment Effective Date”), by and between the Hyland entity that executed the Partner Agreement (hereinafter referred to as “Hyland”), and the Partner that executes this Amendment (hereinafter referred to as “Partner), and amends that certain separate contract with terms and conditions governing the rights that Hyland granted to Partner to resell and market the Alfresco Software (such as an Alfresco Partner Agreement Program Details Addendum and the Alfresco Partner Agreement incorporated therein by reference or other similar agreements addressing such rights to resell and market the Alfresco Software (collectively, the “Partner Agreement”)).
1. DEFINED TERMS: Capitalized terms used in this Amendment and not defined in this Amendment are used herein with the same meanings as such terms have under the Partner Agreement. From and after the date of this Amendment, the terms “Agreement” and “Partner Agreement” as used in the Partner Agreement and as used in this Amendment shall mean and refer to the Partner Agreement as amended by this Amendment.
2. CLARIFICATION REGARDING ACCESS TO ALFRESCO REPOSITORY AND REPOSITORY MATERIALS: Notwithstanding any other provisions of the Partner Agreement or any associated Order Form(s), Partner acknowledges and agrees as follows:
(a) Hyland shall from time to time, in its sole discretion, determine the means and extent to which Partner will be afforded access to Hyland’s private Alfresco product technology repository, (the “Repository”). All materials contained in or accessible through the Repository (which may include, but are not limited to, Software source code, Software object code, proprietary data structures, non-public service calls, proprietary Software extensions and connectors, tools to create Software extensions and connectors, and Software Development Kits (“SDKs”)) constitute Confidential Information of Hyland and are proprietary to Hyland.
(b) If and to the extent that Hyland at any time affords Partner access to such Repository, Partner will access such Repository and will use the materials contained in or accessible through the Repository, and all elements and components of such materials, (collectively, the “Repository Materials”) solely in connection with performing Partner’s obligations under the Partner Agreement. Subject to the following and notwithstanding anything to the contrary, Partner is not authorized under the terms of the Partner Agreement, to modify any Repository Materials, or make any use of the Repository Materials for Partner’s own or any third party’s development purposes
(c) Partner acknowledges and agrees that it may use the Repository Materials solely for the purposes of implementing the Software, troubleshooting performance of the Software, providing support related to the Software, configuring the Software, and developing integrations and connectors to the Software in connection with End User solutions; and with respect to any such source code or object code made available in the Repository Materials, Partner shall not modify or change the Software source code or object code. If Partner makes any changes to any Software source code or object code, Hyland’s support and maintenance obligations, warranties, intellectual property indemnification obligations (if any), and the like shall promptly cease and terminate. Further, Partner shall not modify the source code or object code or create any mechanism that in any way circumvents the licensing structure of the Software (e.g. circumvents the number of licensed users or licensing based on volume or number of transactions).
(d) All license restrictions and confidentiality obligations set forth in the Partner Agreement shall apply, with equal force and effect, to all Repository Materials.
(e) Partner will not provide, make available, or otherwise permit any access to or use of the Repository or any Repository Materials by any third parties, including, but not limited to, current or prospective End Users or customers.
(f) Violation of the foregoing provisions by Partner or any agent, employee, subcontractor, or customer of Partner shall constitute a material breach by Partner of Section 2 of the Partner Agreement.
(g) Hyland may, in its sole discretion, limit, suspend, or discontinue Partner’s access to the Repository and/or any or all Repository Materials at any time.
(h) Partner acknowledges and agrees that, in the event of any expiration or termination of the Partner Agreement, Partner shall have no right to make any use of the Repository Materials, and all such Repository Materials must be promptly returned to Hyland or destroyed (and certified in writing as such) by Partner to Hyland. Notwithstanding the expiration or termination of the Partner Agreement, Partner agrees to treat the Repository Materials received as confidential into perpetuity, and the limitations of use and requirements of confidentiality set forth in the Partner Agreement will survive with respect to the Repository Materials, after the expiration or termination of the Partner Agreement and the return or destruction of the Repository Materials.
3. OTHER TERMS UNAFFECTED: All terms, provisions and obligations of the parties contained in the Partner Agreement not specifically modified herein shall remain in full force and effect.
IN WITNESS WHEREOF, Partner has executed this Amendment as of the day and year set forth after their respective names below:
PARTNER |
Print Name: |
Title: |
Date: |
By: |
By:
Professional Services Terms for Services Proposals
Effective October 19th 2023
DownloadTable of Contents
PROFESSIONAL SERVICES TERMS AND CONDITIONS
As of the Effective Date of the Incorporating Document, these Professional Services Terms and Conditions (these “Terms and Conditions”) are part of the Incorporating Document (as defined in Section 1, below).
1. DEFINED TERMS.
“Agreement” means these Terms and Conditions, together with the Incorporating Document.
“Customer” means the entity that has entered into the Incorporating Document with Hyland. In the case that the counterparty is a certified channel partner of Hyland’s, Section 17.10 of these Terms and Conditions shall apply.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Hyland” means the Hyland company that is a party to the Incorporating Document.
“Incorporating Document” means the Services Proposal, Order Form or other agreement or document entered into between Customer and Hyland and within which these Professional Services Terms and Conditions are referenced or linked.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Hyland and Customer and each, a “Party”.
“Professional Services” means the services performed by Hyland under the Incorporating Document.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 13 or 14 of these Terms and Conditions.
“Software” means Hyland’s proprietary software product(s) or solution for which Customer has obtained a valid license from Hyland or one of its authorized channel partners.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under the Incorporating Document. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Hyland will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure, Hyland agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Incorporating Document that have been performed or developed, in whole or in part, by Hyland prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO INCORPORATING DOCUMENT. Hyland or Customer may, at any time, reasonably request a change to the Incorporating Document. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Hyland and signed by both Parties, that specifically references the Incorporating Document. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Incorporating Document, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Hyland is performing services hereunder, Customer shall provide to Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Hyland’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in the Incorporating Document: (a) Hyland will charge services fees to Customer for the Professional Services at Hyland’s then-current standard list price for the applicable Professional Services and (b) Hyland shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all invoice amounts (other than Disputed Amounts) in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Hyland for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Incorporating Document, Hyland shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Hyland issues such invoice.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS.
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Hyland or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Hyland during the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Hyland grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Hyland products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
(a) Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
(b) Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
(c) Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (i) is notified promptly after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 9.4(iv), Hyland shall remove the infringing portion of the Work Products and refund to Customer the services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Hyland to Customer; (iii) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (iv) Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS.
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 10.1 and 10.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Hyland will refund to Customer the portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY WORK PRODUCTS, INNOVATIONS, INFORMATION OR PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PROFESSIONAL SERVICES OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
11. TERMINATION.
11.1 Generally. Except as otherwise stated in an Incorporating Document, or otherwise agreed by the parties in writing, Customer or Hyland may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other Party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Hyland for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Hyland has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DAMAGES.
13. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
14. CONFIDENTIAL INFORMATION.
14.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not, to the knowledge of the recipient, bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
14.2 Each party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 14 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
14.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
15. NON-SOLICITATION; NO-HIRE. See Exhibit A attached hereto.
16. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit set forth below shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Australia Pty Ltd. Hyland Software Brasil Ltda. Hyland Colombia S.A.S. Hyland France S.A.S. Hyland Software Germany GmbH Hyland Mexico S. de R.L. de C.V. Hyland Software, Inc., if Customer is located in Peru | Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I |
17. GENERAL TERMS.
17.1. Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 17.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 17.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
17.2. Governing Law; Jurisdiction. See Exhibit B attached hereto.
17.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by this Agreement.
17.4 Subcontracting. Hyland may subcontract all or any part of the Professional Services, provided, that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
17.5 Independent Contractor. The Parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
17.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
17.7 Integration. This Agreement, including any exhibit, schedule or agreement attached to this Agreement or referenced in this Agreement, sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from one Party to the other, are rejected and shall be null and void and of no force or effect unless included in a written amendment mutually signed by the Parties. To the extent there is a conflict between these Terms and Conditions and the Incorporating Document, the terms of these Terms and Conditions control.
17.8 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
17.10 Certified Channel Partner. To the extent that Customer is a certified channel partner of Hyland’s, the Incorporating Document has been entered into by Customer for the benefit of an end user (an “End User”), and such End User has not previously entered into a separate contract with Hyland that governs the Professional Services provided under the Incorporating Document, the terms of this Section shall apply.
Customer and Hyland acknowledge and agree that Hyland is providing Professional Services to Customer for the benefit of End User; therefore, Customer (a) represents and warrants that it has entered into a binding contract with End User with respect to the project, under the terms of which Customer is permitted to retain Hyland as a subcontractor to provide the Professional Services contemplated pursuant to this Agreement; (b) agrees that the license to Work Products in Section 9.2 shall be sublicensed by Customer to the End User, subject to the restrictions stated therein and that other than the right to sublicense the Work Products, the license to the Work Products does not extend to Customer; and (c) agrees that it shall cause End User to comply with the provisions of this Agreement that are binding upon Customer as if End User was a Party, including by facilitating End User’s cooperation as requested by Hyland to provide the Professional Services and causing End User to abide by the restrictions and limitations contained herein. Further, Customer agrees that it shall be responsible for compliance with this Agreement by End User and expressly agrees to indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including reasonable attorneys’ fees and court costs, suffered or incurred by Hyland arising from any breach by End User of any provisions of this Agreement.
17.11 Controlling Language. Hyland may make other versions of these Terms and Conditions available in other languages at this online location. This English language version of these Terms and Conditions controls over any version of the Terms and Conditions made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Terms and Conditions are not made available at this online location in the Other Language, this English language version controls over any other version of the Terms and Conditions that may be made available at this online location in another language.
Exhibit A
Non-Solicitation; No-Hire
Section 15 of the Agreement (Non-Solicitation; No-Hire) shall be the terms set forth on this Exhibit A, based upon the applicable Hyland company listed below:
“Restricted Individuals” means any person (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement; and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
During the term of this Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will (except to the extent either party receives the prior written consent of the other party):
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a Restricted Individual, or otherwise encourage or assist any such Restricted Individual to leave the employ of the other party for any reason, in each case at any time during such Restricted Individual’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is a Restricted Individual.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 15(a). The Parties agree that this provision survives the termination of the Agreement.
(d) Section 15(d) of the Agreement shall be the terms set forth below, based upon the applicable Hyland company listed below:
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following terms shall apply as Section 15 of the Agreement (Non-Solicitation; No-Hire):
During the term of this Agreement, Customer will not:
For any Hyland company not referenced in this Exhibit A, Section 15 (Non-Solicitation; No-Hire) shall not apply.
Exhibit B
Governing Law; Jurisdiction
Section 17.2 of the Agreement (Governing Law; Jurisdiction) shall be the terms set forth in this Exhibit B, based upon the applicable Hyland company listed below:
Exhibit C
Hyland Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., this Exhibit C shall apply:
Australian Consumer Law for Users in Australia. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
The warranties provided by Hyland in this Agreement are in addition to other rights and remedies of Customer under the Australian Consumer Law and nothing in this Agreement is intended to limit these rights and remedies which cannot be excluded under the Australian Consumer Law. The goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
If Customer believes that it has an alleged non-conformance of warranty claim, such claim needs to be made within the applicable sixty (60) day warranty period and should be made to the warranty provider, Hyland, as follows: (1) in writing to Hyland at the following address: Attn: Legal Department, Hyland Software, Inc. 28105 Clemens Road, Westlake, Ohio 44145 (USA); or (2) in writing via email to Hyland at australianconsumerlaw@hyland.com.
Customer will bear the expense of making a warranty claim under the terms set forth on this Exhibit C.
If the purchase of the goods by Customer does not fall under the Australian Consumer Law, this Exhibit C shall not apply and the warranty and disclaimer otherwise stated in this Agreement shall control.
Exhibit D
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA, this Exhibit D shall apply:
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S. this Exhibit F shall apply:
12.3 The Parties acknowledge that these limitations and exclusions of Hyland’s liability reflect the allocation of risk under the Agreement and the economical balance required by the Parties, that the Agreement would not have been entered into without these limitations and exclusions, and that these limitations and exclusions shall remain in effect even in the event of termination or rescission of the Agreement.
Exclusion of Unforeseeability: The Parties declare that they measure and accept the risks inherent to the performance of the Agreement. By express agreement, the Parties waive the application of the provisions of article 1195 of the French Civil code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2. Section 9.2 of the Agreement shall be replaced in its entirety as follows:
Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompiling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
10.1 Limited Warranty for Professional Services. Hyland will perform the Professional Services in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes (a) non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement; and (b) any Professional Services in the nature of staff augmentation.
10.2 Limited Warranty for Work Products. For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
10.3 Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Agreement with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of this Agreement.
10.4 Disclaimer of Warranties. Section 10.4 is restated herein and tThe following is added to Section 10.4: Statutory warranty rights of the Customer shall remain unaffected.
10.5 The following is added as an additional Section 10.5:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by this Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THIS AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
If Hyland is Hyland Mexico S. de R.L. de C.V., this Exhibit H shall apply:
For purposes of this Section 12.1, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
If Hyland is Hyland Software, Inc., but Hyland is providing services within the country of Peru, this Exhibit I shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section 12.1, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective October 19th 2023
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GESCHÄFTSBEDINGUNGEN FÜR PROFESSIONELLE DIENSTLEISTUNGEN
Ab dem Datum des Inkrafttretens des Vertragsdokuments sind diese Geschäftsbedingungen für Professionelle Dienstleistungen („Geschäftsbedingungen“) Teil des Vertragsdokuments (wie nachfolgend im Abschnitt 1 definiert).
„Arbeitsergebnisse“ bezeichnet alle Elemente in Form von Computersoftware, einschließlich Quellcode, Objektcode, Skripten und allen Komponenten oder Elementen des Vorstehenden oder Elemente, die mit den Konfigurationstools der Software erstellt wurden, sowie alle Konstruktionsdokumente im Zusammenhang mit Gegenständen in Form von Computersoftware, die jeweils von Hyland erstellt, entwickelt, entdeckt, konzipiert oder eingeführt werden und entweder allein oder in Verbindung mit anderen bei der Erbringung von Dienstleistungen im Rahmen dieser Vereinbarung funktionieren. Falls zutreffend, umfasst der Begriff „Arbeitsergebnisse“ vorkonfigurierte Vorlagen oder VBScripts, die von Hyland im Rahmen der Konfiguration des Vorauserfassungsmoduls der Software erstellt oder anderweitig bereitgestellt wurden.
„Arbeitsstunde“ bezeichnet die Dienste einer (1) Person für einen Zeitraum von einer (1) Stunde (oder eines Teils davon) während der regulären Geschäftszeiten.
„Bestrittene Beträge“ bezeichnet die Beträge auf einer Rechnung, für die der Kund Hyland vor dem Fälligkeitsdatum der Rechnung eine schriftliche Mitteilung zukommen lässt, in der sie ihre Einwände gegen die Zahlung dieser Beträge darlegt.
„Dokumentation“ bedeutet: (1) soweit verfügbar, die in der Software enthaltenen „Hilfedateien“ oder (2), falls in der Software keine solchen „Hilfedateien“ enthalten sind, eine andere von Hyland veröffentlichte Dokumentation, die sich auf die Funktions-, Betriebs- oder Leistungsmerkmale der Software bezieht.
"Hyland“ bedeutet die Hyland Gesellschaft, die Vertragspartei des Vertragsdokuments ist.
„Kunde“ bezeichnet das Unternehmen, welches das Vertragsdokument mit Hyland abgeschlossen hat. Falls es sich bei der Vertragspartei um einen zertifizierten Vertriebspartner von Hyland handelt, gilt Abschnitt 17.10 dieser Geschäftsbedingungen.
„Parteien“ bedeutet Hyland und Kunde gemeinsam (jeweils einzeln „Partei“)
„Professionelle Dienstleistungen“ bezeichnet alle Dienstleistungen, die von Hyland in Erfüllung eines Vertragsdokuments erbracht werden.
„Software“ bedeutet Hylands eigene Softwareprodukte oder Lösungen, für die der Kunde eine gültige Lizenz von Hyland oder einem autorisierten Vertriebspartner von Hyland erworben hat.
„Spezifikationen“ bezeichnet die endgültigen Funktionsspezifikationen für Arbeitsergebnisse, sofern vorhanden, die von Hyland im Rahmen eines Vertragsdokuments erstellt wurden. Spezifikationen gelten bei Arbeitsergebnissen als Dokumentation im Sinne dieser Vereinbarung.
„Verbotene Handlung“ bedeutet: (a) das Entfernen von Urheberrechts-, Marken- oder andere Schutzrechtshinweisen, die auf oder während der Verwendung der Software, der Arbeitsergebnisse oder der Dokumentation erscheinen; (b) der Verkauf, die Übertragung, die Vermietung, das Leasing oder die Unterlizenzierung der Software, der Arbeitsergebnisse oder der Dokumentation and Dritte; (c) sofern dies nicht ausdrücklich in Bezug auf Software oder Arbeitsergebnisse gestattet ist, die Abänderung oder die Modifikation der Software, der Arbeitsergebnisse oder der Dokumentation; (d) das Reverse-Engineering, das Disassemblieren, das Dekompilieren, der Versuch, den Quell-Code abzuleiten, oder Anfertigung von abgeleiteten Werken und zwar in Bezug auf die Software, die Arbeitsergebnisse oder die Dokumentation; oder (e) der Verstoß gegen die Bestimmungen der Abschnitte 9, 13 oder 14 dieser Geschäftsbedingungen.
„Vereinbarung“ bedeutet diese Geschäftsbedingungen gemeinsam mit dem Vertragsdokument.
„Vertragsdokument“ bezeichnet das Leistungsangebot, das Bestellformular oder eine andere zwischen dem Kunden und Hyland geschlossene Vereinbarung oder Dokument, in der/dem auf diese Geschäftsbedingungen für Professionelle Dienstleistungen verwiesen wird oder diese Geschäftsbedingungen verlinkt sind.
2. AUSFÜHRUNG. Hyland wird die in dieser Vereinbarung beschriebenen Professionellen Dienstleistungen wie in dieser Vereinbarung enthalten oder wie zu einem von den Parteien einvernehmlich und schriftlich gesondert festgelegten Zeitpunkt und Zeitplan ausführen. Wenn Verzögerungen bei der Ausführung solcher Professionellen Dienstleistungen ausschließlich auf falsche Informationen, falsche Annahmen oder Nichterfüllung der Verpflichtungen des Kunden im Zusammenhang mit dieser Vereinbarung zurückzuführen sind, kann der Terminplan für das betreffende Projekt verlängert werden. Hyland übernimmt keine Haftung oder Verantwortung für Kosten oder Aufwendungen, die sich aus solchen Verzögerungen ergeben. Für den Fall, dass die Erfüllung eines in dieser Vereinbarung festgelegten Meilensteins aufgrund einer Verzögerung, die ausschließlich von Hyland verursacht wurde, nicht erreicht wird und sofern dieser Grund kein Ereignis höherer Gewalt ist, stimmt Hyland zu, ohne zusätzliche Kosten für den Kunden, die zusätzlichen Ressourcen und das Personal bereitzustellen, welche erforderlich sind, um sicherzustellen, dass eine solche Verzögerung nicht zu Verzögerungen späterer Meilensteine oder des Abschlusses der Professionellen Dienstleistungen führt. Die Parteien vereinbaren, dass alle in dem Vertragsdokument genannten Professionellen Dienstleistungen oder Arbeitsergebnisse, die vor der Unterschrift dieser Vereinbarung durch die Parteien ganz oder teilweise erbracht oder entwickelt wurden, dennoch allen Bestimmungen und Bedingungen dieser Vereinbarung unterfallen.
3. ÄNDERUNGEN DES VERTRAGSDOKUMENTS. Jede Partei ist jederzeit berechtigt, eine angemessene Änderung eines Vertragsdokuments zu beantragen. Jede angeforderte Änderung, die die Parteien gegenseitig akzeptieren (eine „Änderung“), wird in einem schriftlichen Änderungsauftrag aufgeführt, der von Hyland erstellt und von beiden Parteien vereinbart und unterzeichnet wird, wobei ausdrücklich auf das entsprechende Vertragsdokument verwiesen wird. Falls sich die Parteien nicht auf eine vorgeschlagene Änderung oder einen vorgeschlagenen Änderungsauftrag einigen können und sich diese vorgeschlagene Änderung auf eine wesentliche Komponente des Projekts bezieht, die Gegenstand des entsprechenden Vertragsdokuments ist, kann jede Partei diese Vereinbarung mit einer Frist von mindestens dreißig (30) Tagen im Voraus durch schriftliche Mitteilung an die andere Partei kündigen.
4. VERPFLICHTUNGEN DES KUNDEN.
4.1 Unterstützung und Verpflichtungen. Der Kunde erklärt sich damit einverstanden, mit Hyland bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung zusammenzuarbeiten und Hyland zu unterstützen, die in dieser Vereinbarung angegebenen Ressourcen bereitzustellen und alle Verpflichtungen zu erfüllen, die der Kunde gemäß den Bestimmungen dieser Vereinbarung erfüllen muss. Während eines Zeitraums, in dem Hyland Professionelle Dienstleistungen im Rahmen dieser Vereinbarung erbringt, muss der Kunde dem Hyland-Projektteam einen unabhängigen lokalen (vor Ort) und Remote-Zugriff (außerhalb des Standorts) gewähren und zwar über sichere Verbindungen, wie etwa eine Netzwerkverbindung, eine VPN-Verbindung oder andere ähnliche Methoden, sowie spezieller Benutzerkonten mit entsprechenden Berechtigungen für die entsprechende Software, Hardware oder virtueller Maschinen, die dem entsprechenden Softwaresystem zugeordnet sind. Remote- und lokaler Zugriff wird für alle bereitgestellten Umgebungen, einschließlich der Produktionsumgebung, gewährt. Der Kunde nimmt zur Kenntnis, dass die Fähigkeit von Hyland, die Professionellen Dienstleistungen zu erbringen, den festgelegten Leistungsplan einzuhalten und die Dienstleistungsgebühren in angemessener Weise mit den in dieser Vereinbarung angegebenen Schätzungen in Übereinstimmung zu bringen, beeinträchtigt werden kann, wenn der Kunde es versäumt, Unterstützung zu leisten und seine Verpflichtungen aus dieser Vereinbarung zu erfüllen.
4.2 Drittsoftware Nutzungsrechte. Ungeachtet gegenteiliger Bestimmungen und sofern der Kunde Hyland auffordert, Professionelle Dienstleistungen für oder in Bezug auf Software von Drittanbietern zu erbringen, sichert der Kunde gegenüber Hyland zu, dass er alle erforderlichen Nutzungsrechte an Drittsoftware hat, um dies Hyland zu ermöglichen.
4.3 Schutz der Kundensysteme. Sofern es sich nicht um eine von Hyland gehostete Lösung handelt, erklärt sich der Kunde damit einverstanden, dass er allein dafür verantwortlich ist, geeignete Maßnahmen zu ergreifen, um seine Computersysteme zu isolieren und zu sichern oder anderweitig zu archivieren, einschließlich seiner Computer Programme, Daten und Dateien.
4.4 Sichere Arbeitsumgebung. Der Kunde ist dafür verantwortlich und stellt sicher, dass alle angemessenen und rechtlichen Gesundheits- und Sicherheitsvorkehrungen getroffen wurden und voll funktionsfähig sind, um Hyland-Mitarbeiter, Vertreter oder Subunternehmer während des Aufenthalts beim Kunden zu schützen.
5. DIENSTLEISTUNGSGEBÜHREN. Sofern in dem jeweiligen Vertragsdokument nicht anderweitig vereinbart: (a) berechnet Hyland dem Kunden Dienstleistungsgebühren für Professionelle Dienstleistungen zum jeweils aktuellen Standard-Listenpreis von Hyland für die entsprechenden Professionellen Dienstleistungen und (b) stellt Hyland dem Kunden monatlich nachträglich Gebühren für Professionelle Dienstleistungen in Rechnung, basierend auf der Anzahl der für die Fertigstellung des Projekts erforderlichen Arbeitsstunden und den geltenden Stundengebühren. Der Kunde ist verpflichtet, alle Rechnungsbeträge (mit Ausnahme von Bestrittenen Beträgen) innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen. Alle Schätzungen der Gebühren oder Arbeitsstunden, die für die Fertigstellung des Projekts erforderlich sind, sind ungefähre Angaben zu der voraussichtlichen Höhe der Gebühren und der Zeit, die für die Fertigstellung des Projekts erforderlich sind. Die tatsächliche Anzahl der Arbeitsstunden kann variieren.
6. REISEKOSTEN UND SPESEN. Alle üblichen und angemessenen Auslagen und Kosten, die Hyland im Zusammenhang mit der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung entstehen (einschließlich Gebühren und Kosten für Reisen, Mahlzeiten, Unterkunft und Registrierungsanforderungen für Drittanbieter) gemäß den geltenden internen Richtlinien von Hyland für die Erstattung von Kosten und Aufwendungen an seine Mitarbeiter, sind Hyland gegenüber zu erstatten. Sofern in einem entsprechenden Vertragsdokument nichts anderes vereinbart ist, stellt Hyland dem Kunden alle erstattungsfähigen Kosten und Aufwendungen monatlich nachträglich in Rechnung und der Kunde hat die Rechnung innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen.
8. STEUERN UND STAATLICHE ABGABEN.Alle Zahlungen im Rahmen dieser Vereinbarung verstehen sich exklusive aller anfallenden Steuern und staatlichen Abgaben (z. B. Zölle), die alle vom Kunden zu zahlen sind (mit Ausnahme der Steuern auf das Einkommen von Hyland). Für den Fall, dass der Kunde gesetzlich verpflichtet ist, Steuern einzubehalten, verpflichtet sich der Kunde, Hyland alle erforderlichen Belege und Unterlagen vorzulegen, die eine solche Zahlung belegen. Falls Hyland gesetzlich verpflichtet ist, Steuern oder staatliche Abgaben im Namen oder auf Rechnung des Kunden abzuführen, verpflichtet sich der Kunde, Hyland innerhalb von dreißig (30) Tagen nach Erhalt einer entsprechenden schriftlichen Benachrichtigung entsprechend zu entschädigen. Der Kunde erklärt sich damit einverstanden, Hyland vor jeder Überweisung, die Hyland im Namen oder auf Rechnung des Kunden vornehmen muss, gültige Steuerbefreiungsbescheinigungen vorzulegen, sofern diese Bescheinigungen erforderlich sind.
9. ARBEITSERGEBNISSE.
9.2 Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
9.3 Änderung von Arbeitsergebnissen.
(a) Form der gelieferten Arbeitsprodukte. Die Form, in der Hyland Arbeitsergebnisse liefert, wird von Hyland in Abhängigkeit vom Zweck und der Funktionalität des Arbeitsergebnisses festgelegt.
(b) Konfigurierte Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert: (a) in Form von (i) Quellcode, der von Tools in der Software in Maschinensprache kompiliert wird; oder (ii) einem Skript; oder (b) welches unter Verwendung der Konfigurations-Tools in der Software erstellt wird (ein „Konfiguriertes Arbeitsergebnis“), gewährt Hyland dem Kunden das beschränkte Recht, das Konfigurierte Arbeitsergebnis zu modifizieren, vorausgesetzt, ein solches modifiziertes Konfiguriertes Arbeitsergebnis wird nur in Übereinstimmung mit den Bedingungen der beschränkten Lizenz für ein solches Arbeitsergebnis verwendet, die gemäß diesem Abschnitt gewährt wird.
(c) Unabhängige Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert, bei dem es sich nicht um ein Konfiguriertes Arbeitsergebnis handelt (ein „Unabhängiges Arbeitsergebnis“), darf der Kunde dieses Unabhängige Arbeitsergebnis nicht verändern oder modifizieren, es sei denn, der letzte Satz dieses Abschnittes sieht etwas anderes vor. Wenn Hyland ein Unabhängiges Arbeitsergebnis liefert und der Kunde das Recht zur Modifizierung des Unabhängigen Arbeitsergebnisses erhalten möchte, können die Parteien einvernehmlich vereinbaren, dass Hyland dem Kunden eine Kopie des Formats des Unabhängigen Arbeitsergebnisses liefert, das zur Modifizierung des Unabhängigen Arbeitsergebnisses erforderlich ist, vorbehaltlich und nach Zahlung der zusätzlichen Dienstleistungsgebühren durch den Kunden an Hyland, die Hyland möglicherweise für die Erstellung und Lieferung eines solchen Formats berechnen kann. In diesem Fall gewährt Hyland dem Kunden das Recht, das gelieferte Format des Unabhängigen Arbeitsergebnisses zu modifizieren und gegebenenfalls zu kompilieren, vorausgesetzt, dass das modifizierte Unabhängige Arbeitsergebnis nur in Übereinstimmung mit den Bedingungen der gemäß diesem Abschnitt gewährten beschränkten Lizenz für dieses gewährte Arbeitsergebnis verwendet wird.
9.4 Entschädigung für die Verletzungen gewerblicher Schutzrechte durch Arbeitsergebnisse. Hyland erklärt sich damit einverstanden, den Kunden von jeglicher Haftung und allen Kosten, einschließlich angemessener Anwaltskosten, freizustellen, die sich aus oder im Zusammenhang mit Ansprüchen, Handlungen oder Verfahren Dritter ergeben, die gegen den Kunden aufgrund einer Verletzung oder widerrechtlichen Aneignung eines Patents, eines eingetragenen Urheberrechts oder einer eingetragenen Marke eines Dritten, durch die Arbeitsergebnisse erhoben werden, vorausgesetzt, dass Hyland: (i) sofort benachrichtigt wird, nachdem der Kunde über einen solchen Anspruch informiert wurde; (ii) die alleinige Verantwortung für die Verteidigung und etwaige Vergleichsverhandlungen in Bezug auf einen solchen Anspruch trägt (vorausgesetzt, dass Hyland einen solchen Anspruch nicht ohne die vorherige schriftliche Zustimmung des Kunden vergleicht, wenn ein solcher Vergleich eine Vereinbarung oder ein Eingeständnis oder eine Anerkennung einer Haftung oder eines Fehlverhaltens seitens des Kunden enthält oder anderweitig eine Zahlung durch den Kunden erfordert); (ii) die angemessene Kooperation des Kunden bei der Verteidigung oder Beilegung eines solchen Anspruchs erhält; und (iv) das Recht hat, beim Eintreten oder bei der Wahrscheinlichkeit (nach Ansicht von Hyland) eines Verstoßes oder einer widerrechtlichen Aneignung entweder dem Kunden das Recht zur weiteren Nutzung der Arbeitsergebnisse zu verschaffen, oder die betreffenden Teile der Arbeitsergebnisse durch andere gleichwertige, nicht rechtsverletzende Teile zu ersetzen.
10. BESCHRÄNKTE GEWÄHRLEISTUNG FÜR DIENSTLEISTUNGEN UND ARBEITSERGEBNISSE
10.1 Beschränkte Gewährleistungen für Professionelle Dienstleistungen. Für einen Zeitraum von sechzig (60) Tagen ab dem Datum des Abschlusses der Professionellen Dienstleistungen gewährleistet Hyland gegenüber dem Kunden, dass diese Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus, die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von sechzig (60) Tagen ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnis, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
10.3 Abhilfe. Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß der Abschnitte 10.1 und 10.2 lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Frist von sechsig (60) Tagen schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder angemessene Anstrengungen unternehmen, um die nicht konformen Professionellen Dienstleistungen erneut auszuführen und versuchen, die fehlerhaften Professionellen Dienstleistungen zu korrigieren. Im Falle der Nichtkonformität eines Arbeitsproduktes wird Hyland das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann.
Sofern Hyland feststellt, dass eine Behebung der Nichtkonformität nach angemessener Zeit nicht möglich ist oder dass Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, besteht das einzige Recht des Kunden in Kündigung dieser Vereinbarung. In diesem Fall erstattet Hyland dem Kunden den Teil der vor der Kündigung in Bezug auf die Erstellung und Implementierung eines solchen nichtkonformen Arbeitsergebnisses oder der nichtkonformen Professionellen Dienstleistungen bezahlten Dienstleistungsgebühren.
10.4 Gewährleistungsausschluss. MIT AUSNAHME DER VORSTEHENDEN AUSDRÜCKLICHEN BESTIMMUNGEN GEBEN HYLAND UND SEINE LIEFERANTEN KEINE GARANTIEN, ZUSICHERUNGEN ODER GEWÄHRLEISTUNGEN IN BEZUG AUF ARBEITSERGEBNISSE, INNOVATIONEN, INFORMATIONEN ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN. HYLAND UND SEINE LIEFERANTEN LEHNEN ALLE ANDEREN AUSDRÜCKLICHEN, STILLSCHWEIGENDEN UND GESETZLICHEN GARANTIEN ODER GEWÄHRLEISTUNGEN AB UND SCHLIESSEN DIESE AUS, EINSCHLIESSLICH, ABER NICHT BESCHRÄNKT AUF GARANTIEN/GEWÄHRLEISTUNGEN GEGEN RECHTSVERLETZUNGEN, DIE STILLSCHWEIGENDE GARANTIE/GEWÄHRLEISTUNGEN DER MARKTGÄNGIGKEIT UND DER EIGNUNG FÜR EINEN BESTIMMTEN ZWECK SOWIE GARANTIEN/GEWÄHRLEISTUNG, DIE SICH AUS DEM VERLAUF DER LEISTUNG, DEM HANDELSBRAUCH ODER DER HANDELSGEWOHNHEIT ERGEBEN ODER ALS SOLCHE ANGESEHEN WERDEN KÖNNEN. HYLAND UND SEINE LIEFERANTEN GARANTIEREN UND GEWÄHRLEISTEN NICHT, DASS DIE ERBRACHTEN PROFESSIONELLEN DIENSTLEISTUNGEN ODER ARBEITSERGEBNISSE DEN ANFORDERUNGEN DES KUNDEN ENTSPRECHEN ODER FEHLERFREI SIND ODER DASS DER BETRIEB DER SOFTWARE ODER DER ARBEITSERGEBNISSE, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN, NICHT UNTERBROCHEN WIRD. SOFERN NICHT AUSDRÜCKLICH IN DIESER VEREINBARUNG ANGEGEBEN, ÜBERNIMMT HYLAND KEINERLEI HAFTUNG IN BEZUG AUF HARDWARE, FIRMWARE, SOFTWARE ODER DIENSTLEISTUNGEN VON DRITTEN.
11. KÜNDIGUNG.
11.1 Allgemein. Sofern nicht im Vertragsdokument oder anderweitig zwischen den Parteien schriftlich vereinbart, können der Kunde oder Hyland diese Vereinbarung aus beliebigen Gründen mit einer Frist von mindestens dreißig (30) Tagen schriftlich kündigen.
11.2 Kündigung durch eine der Parteien. Jede Partei kann diese Vereinbarung mit sofortiger Wirkung nach schriftlicher Mitteilung an die jeweils andere Partei in ihrer Gesamtheit kündigen, wenn die jeweils andere Partei gegen eine wesentliche Bestimmung diese Vereinbarung verstoßen hat und den Verstoß nicht innerhalb von dreißig (30) Tagen nach Erhalt der schriftlichen Mitteilung des Verstoßes durch die nicht verletzende Partei behoben hat; vorausgesetzt, dass Hyland nicht verpflichtet ist, dem Kunden die Möglichkeit zu geben, einen Verstoß im Falle einer Verbotenen Handlung zu beheben, die für alle Zwecke als wesentliche Bestimmungen dieser Vereinbarung betrachtet werden.
11.3 Kündigung dieser Vereinbarung. Im Falle jeder Kündigung dieser Vereinbarung ist der Kunde verpflichtet, alle Dienstleistungsgebühren, die sich auf von Hyland vor Wirksamkeit der Kündigung erbrachten Professionellen Dienstleistungen beziehen zu entrichten. Dies gilt nicht, sofern Hyland gegen eine Verpflichtung zur Erbringung von Professionellen Dienstleistung verstoßen hat und dieser Verstoß den Kündigungsgrund darstellt.
11.4 Auswirkungen der Kündigung. Bei jeder Beendigung dieser Vereinbarung (außer durch Hyland aufgrund eines Verstoßes des Kunden) bleibt die Lizenz des Kunden zur Nutzung der in dieser Vereinbarung enthaltenen Arbeitsergebnisse gemäß ihren Bedingungen bestehen.
12. HAFTUNGSBESCHRÄNKUNG.
12.1 WEDER DIE PARTEIEN NOCH IHRE VERBUNDENEN UNTERNEHMEN (UND IM FALLE VON HYLAND HYLAND’S LIEFERANTEN) SIND HAFTBAR, SEI ES AUFGRUND EINES VERTRAGS, EINER UNERLAUBTEN HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER EINES ANDEREN RECHTLICHEN GRUNDES FÜR INDIREKTE, ZUFÄLLIGE, BESONDERE ODER FOLGESCHÄDEN ODER FÜR ENTGANGENE EINNAHMEN, REPUTATION, EINSPARUNGEN ODER GEWINNE (MIT AUSNAHME DER IM RAHMEN DIESER VEREINBARUNG FÄLLIGEN GEBÜHREN), VERLUST ODER BESCHÄDIGUNG VON DATEN ODER PROGRAMMEN, KOSTEN FÜR ERSATZ ODER DIE BEHEBUNG VON SCHÄDEN ODER GESCHÄFTSUNTERBRECHUNGEN, SELBST WENN SIE AUF DIE MÖGLICHKEIT SOLCHER SCHÄDEN, VERLUSTE, AUSGABEN ODER KOSTEN HINGEWIESEN WURDEN.
12.2 DIE GESAMTE, KUMULATIVE HAFTUNG VON HYLAND (EINSCHLIESSLICH VERBUNDENEN UNTERNEHMEN UND LIEFERANTEN), DIE SICH AUS DIESER VEREINBARUNG ERGIBT, SEI ES AUS VERTRAG ODER UNERLAUBTER HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER AUS EINES ANDEREN RECHTLICHEN GRUNDES, ÜBERSTEIGT IN KEINEM FALL DEN GESAMTBETRAG, DEN DER KUNDE AN HYLAND FÜR DIE ERBRINGUNG DER DIENSTLEISTUNGEN, DIE DEN ANSPRUCH BEGRÜNDEN, INNERHALB DES ZWÖLF (12) MONATSZEITRAUMS, DER DEM ERSTEN ANSPRUCH BEGRÜNDENDEN EREIGNIS UNMITTELBAR VORAUSGEHT, TATSÄCHLICH GEZAHLT HAT (ABZÜGLICH ETWAIGER RÜCKERSTATTUNGEN ODER GUTSCHRIFTEN). IN BEZUG AUF PRODUKTE ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE DEM KUNDEN KOSTENLOS ZUR VERFÜGUNG GESTELLT WURDEN (WIE Z.B. EVALUIERUNGSSOFTWARE ODER -DIENSTLEISTUNGEN), HAFTEN WEDER HYLAND NOCH SEINE VERBUNDENEN UNTERNEHMEN ODER LIEFERANTEN FÜR SCHÄDEN.
13. EXPORT. Alle im Rahmen dieser Vereinbarung bereitgestellte Software, Arbeitsergebnisse oder Dokumentation, unterliegen den Exportkontrollgesetzen und -bestimmungen der Vereinigten Staaten und anderer Rechtsordnungen. Der Kunde verpflichtet sich, alle relevanten Exportkontrollgesetze und -bestimmungen, einschließlich der Bestimmungen des US-Handelsministeriums und aller US-Exportkontrollgesetze, einschließlich, aber nicht beschränkt auf die Exportverwaltungsbestimmungen des US-Handelsministeriums (EAR), vollständig einzuhalten, um sicherzustellen, dass die Software, die Arbeitsergebnisse oder die Dokumentation nicht unter Verstoß gegen die Gesetze der Vereinigten Staaten von Amerika oder die Gesetze und Vorschriften anderer Rechtsordnungen exportiert werden. Der Kunde verpflichtet sich, die Software, die Arbeitsergebnisse oder die Dokumentation nicht an Organisationen oder Staatsangehörige in den mit einem Embargo der Vereinigten Staaten belegten Gebieten wie Kuba, Iran, Nordkorea, Sudan, Syrien oder einem anderen Gebiet oder einer anderen Nation, für die das US-Handelsministerium, das US-Außenministerium, das US-Finanzministerium, die EU und/oder etwaige weitere Nationen ein Sanktionsprogramm für kommerzielle Aktivitäten unterhält, zu exportieren oder zu re-exportieren. Der Kunde darf die Software, die Arbeitsergebnisse oder die Dokumentation nicht für, gemäß den geltenden Gesetzen und Vorschriften der USA und anderer Gerichtsbarkeiten, verbotene Endanwendungen verwenden, einschließlich, aber nicht beschränkt auf Anwendungen im Zusammenhang mit nuklearer, chemischer oder biologischer Kriegsführung, Raketentechnologie (einschließlich unbemannter Luftfahrzeuge), militärischen Anwendungen oder nach den US Export Administration Regulations (EAR) oder anderen einschlägigen Gesetzen, Regeln oder Vorschriften der Vereinigten Staaten von Amerika und anderer Rechtsordnungen verbotenen oder eingeschränkten Verwendungen.
14. VERTRAULICHE INFORMATIONEN.
14.1 „Vertrauliche Informationen“ sind alle Informationen, die mit "proprietär" oder "vertraulich" gekennzeichnet sind, von denen die empfangende Partei weiß, dass sie vertraulich sind, oder die so beschaffen sind, dass sie üblicherweise zwischen Geschäftspartnern vertraulich sind, es sei denn, es gelten die Bestimmungen des nächsten Satzes. Zu den Vertraulichen Informationen gehören nicht Informationen: (a) die der Öffentlichkeit allgemein bekannt sind oder werden, ohne dass die empfangende Partei gegen diese Vereinbarung verstoßen hat, (b) in Bezug auf die die empfangende Partei nachweist, dass sie sich vor ihrer Offenlegung durch die offenlegende Partei im Besitz der empfangenden Partei befanden, (c) die die empfangende Partei von einem Dritten erhält, der gegenüber der offenlegenden Partei nicht durch Beschränkungen, Verpflichtungen oder Geheimhaltungspflichten gebunden ist, oder (d) in Bezug auf die die empfangende Partei nachweist, dass sie sie unabhängig und ohne Bezugnahme auf die Informationen der jeweils anderen Partei entwickelt hat.
14.3 Die Parteien erkennen an, dass ein Rechtsbehelf bei einem Verstoß gegen die Bestimmungen dieser Vereinbarung in Bezug auf Vertrauliche Informationen und Rechte an geistigem Eigentum nicht ausreicht, um die geschädigte Partei zu schützen, und dass die geschädigte Partei dementsprechend das Recht hat, zusätzlich zu allen anderen ihr zur Verfügung stehenden Rechtsbehelfen und Rechtsmitteln eine bestimmte Leistung oder einen Unterlassungsanspruch zu verlangen, um die Bestimmungen dieser Vereinbarung durchzusetzen.
15. ABWERBEVERBOT. EINSTELLUNGSVERBOT. Siehe Anlage A zu dieser Vereinbarung.
16. ZUSATZBESTIMMUNGEN. Wenn es sich bei Hyland um ein unten aufgeführtes Hyland-Unternehmen handelt, gelten die zusätzlichen oder alternativen Bedingungen, die in der unten aufgeführten Anlage – Zusatzbestimmungen aufgeführt sind:
Hyland-Unternehmen Zusatzbestimmungen
Hyland Software Germany GmbH Anlage C
17. ALLGEMEINE BESTIMMUNGEN
17.1 Höhere Gewalt. Ein Versäumnis, eine Verzögerung oder die Nichterfüllung einer Verpflichtung durch eine Partei (mit Ausnahme der Zahlung von Geldern) stellt keine Nichterfüllung oder Verletzung dar, soweit ein solches Versäumnis, eine solche Verspätung oder eine solche Nichterfüllung auf eine bestehende oder zukünftige Ursache zurückzuführen ist, die außerhalb der Kontrolle (einschließlich, aber nicht beschränkt auf: Maßnahmen oder Untätigkeit von Regierungs-, Zivil- oder Militärbehörden; Feuer; Streik, Aussperrung oder andere Arbeitskämpfe; Flut; Krieg; Aufruhr; Diebstahl; Erdbeben; Naturkatastrophe oder höhere Gewalt; Pandemien, Epidemien, nationale Notfälle, Nichtverfügbarkeit von Materialien oder Versorgungsunternehmen, Sabotage, Viren oder die Handlung, Fahrlässigkeit oder Versäumnis der anderen Partei) und außerhalb von Fahrlässigkeit oder vorsätzlichem Fehlverhalten der Partei liegt, der die Verzögerung oder Nichterfüllung sonst zur Last gelegt würde. Jede Partei, die sich auf eine der vorstehenden Ausführungen als Entschuldigung für die Nichterfüllung, den Verzug oder die verspätete Erfüllung berufen möchte, muss die andere Partei, sobald der Grund vorliegt, unverzüglich schriftlich über die Tatsachen informieren, die einen solchen Grund darstellen und wenn die Ursache nicht mehr besteht, dies der anderen Partei unverzüglich mitzuteilen. Dieser Abschnitt 17.1 schränkt in keiner Weise das Recht einer Partei ein, Ansprüche gegen Dritte wegen Schäden geltend zu machen, die aus diesen Gründen entstanden sind. Wenn ein Leistungstermin einer Partei im Rahmen dieser Vereinbarung gemäß diesem Abschnitt 17.1 um mehr als neunzig (90) Kalendertage verschoben oder verlängert wird, kann die andere Partei durch schriftliche Mitteilung während der Verschiebung oder Verlängerung und mindestens dreißig (30) Tage vor dem Datum des Inkrafttretens der Kündigung diese Vereinbarung kündigen.
17.2 Anwendbares Recht und Gerichtsstand. Siehe Anlage B zu dieser Vereinbarung.
17.3 Bindungswirkung; Abtretung. Diese Vereinbarung ist für die Parteien und ihre jeweiligen Rechtsnachfolger und zugelassenen Abtretungsempfänger bindend und kommt diesen zugute. Keine Partei darf diese Vereinbarung oder ihre Rechte oder Pflichten aus dieser Vereinbarung ganz oder teilweise an eine andere natürliche oder juristische Person ohne vorherige schriftliche Zustimmung der anderen Partei abtreten, übertragen oder unterlizenzieren, immer vorausgesetzt, dass eine solche Zustimmung nicht unbillig verweigert werden darf, wenn eine Partei diese Vereinbarung in ihrer Gesamtheit an den überlebenden Rechtsträger einer Fusion oder Konsolidierung oder an einen Käufer von im Wesentlichen allen Vermögenswerten dieser Partei überträgt, der alle Verpflichtungen dieser Partei aus dieser Vereinbarung schriftlich übernimmt. Jede Abtretung, die ohne Einhaltung der Bestimmungen dieses Abschnitts erfolgt, ist nichtig. Ungeachtet gegenteiliger Bestimmungen kann Hyland diese Vereinbarung ohne Zustimmung der anderen Partei durch schriftliche Mitteilung an die andere Partei an ein mit Hyland verbundenes Unternehmen abtreten. Der Kunde erkennt an, dass Hyland ein mit Hyland verbundenes Unternehmen und / oder eines seiner verbundenen Unternehmen die mit der Erfüllung der in dieser Vereinbarung vorgesehenen Verpflichtungen von Hyland beauftragen oder diese Verpflichtungen an ein solches verbundenes Unternehmen übertragen kann.
17.4 Vergabe von Unteraufträgen. Hyland kann alle oder einen Teil der Professionellen Dienstleistungen an Subunternehmer vergeben, vorausgesetzt Hyland bleibt gegenüber dem Kunden für die Erbringung von Dienstleistungen an Subunternehmer verantwortlich.
17.5 Unabhängige Vertragspartner. Die Parteien erkennen an, dass Hyland ein unabhängiger Auftragnehmer ist und dass Hyland für seine Verpflichtungen als Arbeitgeber für die Personen, die Professionelle Dienstleistungen erbringen, verantwortlich ist.
17.6 Dritte. Keine der hierin ausdrücklich oder stillschweigend enthaltenen Regelungen, ist dazu bestimmt oder so auszulegen, dass damit anderen natürlichen oder juristischen Person als den Parteien aufgrund dieser Vereinbarung Rechte oder Rechtsmittel übertragen oder gewährt werden. Drittanbieter von mit der Software gebündelten Softwareprodukten Drittbegünstigte im Hinblick auf diese Vereinbarung, soweit sie sich auf deren Softwareprodukte bezieht.
17.7 Integration. Diese Vereinbarung (einschließlich aller Anlagen oder Anhänge, die vorhanden sind oder auf die Bezug genommen wird) stellt die gesamte Vereinbarung zwischen den Parteien in Bezug auf den Gegenstand dieser Vereinbarung dar. Diese Vereinbarung tritt an die Stelle aller früheren Vereinbarungen, Verhandlungen und Gespräche zwischen den Parteien über denselben Gegenstand. Alle anderen Bedingungen, die von den Bedingungen dieser Vereinbarung abweichen oder sie ergänzen, unabhängig davon, ob sie in einer Bestellung oder einer anderen elektronischen, schriftlichen oder mündlichen Mitteilung einer Partei an die andere enthalten sind, werden zurückgewiesen und sind null und nichtig und ohne Kraft oder Wirkung, es sei denn, sie sind in einer schriftlichen Änderungsvereinbarung enthalten, die von den Parteien gegenseitig unterzeichnet wurde. Im Falle eines Widerspruchs zwischen diesen Geschäftsbedingungen und dem Vertragsdokument gehen die Bedingungen dieser Geschäftsbedingungen vor.
17.8 Salvatorische Klausel. Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig erklärt wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall wird die betroffene Bestimmung durch eine Bestimmung ersetzt, durch die die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung innerhalb der Grenzen des geltenden Rechts bzw. maßgeblicher Gerichtsentscheidungen bestmöglich erreicht werden.
17.9 Unternehmensrichtlinien. Hyland erkennt an, dass der Kunde Unternehmensrichtlinien unterhält, die für Personen gelten, die Dienstleistungen in den Räumlichkeiten oder im System des Kunden erbringen (zusammenfassend als "Unternehmensrichtlinien" bezeichnet). Bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung wird sich Hyland in angemessener Weise bemühen, die Unternehmensrichtlinien einzuhalten, soweit diese Unternehmensrichtlinien auf die Erbringung solcher Professionellen Dienstleistungen anwendbar sind, nicht im Widerspruch zur Vereinbarung oder einem anderen zwischen Hyland und dem Kunden bestehenden Vertrag stehen und Hyland rechtzeitig vor der Beauftragung der Professionellen Dienstleistungen zur Verfügung gestellt wurden. Ungeachtet gegenteiliger Bestimmungen in den Unternehmensrichtlinien erkennt der Kunde an und erklärt sich damit einverstanden, dass Hyland nicht vertragsbrüchig oder anderweitig verantwortlich sein wird, wenn eine Hyland-Ressource die Unternehmensrichtlinien nicht einhält und ein solches Versäumnis nicht anderweitig eine Verletzung dieser Vereinbarung darstellt, und dass der Kunde als einziges Rechtsmittel die einzelne(n) Ressource(n), die für das Versäumnis verantwortlich ist/sind, sofort aus seinen Räumlichkeiten entfernen und verlangen kann, dass diese einzelne(n) Ressource(n) keine weiteren Professionellen Dienstleistungen für den Kunden erbringen.
17.10 Zertifizierter Vertriebspartner. Sofern der Kunde ein zertifizierter Vertriebspartner von Hyland ist, das Vertragsdokument vom Kunden zugunsten eines Endbenutzers (ein "Endbenutzer") abgeschlossen wurde und dieser Endbenutzer nicht zuvor einen separaten Vertrag mit Hyland abgeschlossen hat, der die im Rahmen Vertragsdokument erbrachten Professionellen Dienstleistungen regelt, gelten die Bestimmungen dieses Abschnitts.
Der Kunde und Hyland erkennen an und vereinbaren, dass Hyland die Professionellen Dienstleistungen für den Kunden für die Verwendung durch den Endbenutzer erbringt; daher (a) sichert der Kunde zu und gewährleistet, dass er einen verbindlichen Vertrag mit dem Endbenutzer in Bezug auf das Projekt abgeschlossen hat, gemäß dessen Bedingungen der Kunde Hyland als Unterauftragnehmer mit der Erbringung der Professionellen Dienstleistungen gemäß dieser Vereinbarung beauftragen darf; (b) stimmt der Kunde zu, dass die Lizenz für die Arbeitsergebnisse gemäß Abschnitt 9.2 vom Kunden an den Endnutzer unter den dort genannten Einschränkungen unterlizenziert wird und dass sich die Lizenz für die Arbeitsergebnisse mit Ausnahme des Rechts zur Unterlizenzierung nicht auf den Kunden erstreckt; und (c) stimmt der Kunde zu, dass er den Endnutzer dazu veranlasst, die Bestimmungen dieser Vereinbarung einzuhalten, die für den Kunden verbindlich sind, als wäre der Endnutzer eine Vertragspartei, einschließlich der Unterstützung von Hyland in Bezug auf geforderte Zusammenarbeit des Endnutzers bei der Erbringung der Professionellen Dienstleistungen und der Veranlassung des Endnutzers, sich an die hierin enthaltenen Beschränkungen und Einschränkungen zu halten. Des Weiteren erklärt sich der Kunde damit einverstanden, dass er für die Einhaltung dieser Vereinbarung durch den Endnutzer verantwortlich ist und erklärt sich ausdrücklich damit einverstanden, Hyland von allen Ansprüchen, Verbindlichkeiten, Verlusten, Schäden und Kosten, einschließlich angemessener Anwalts- und Gerichtskosten, freizustellen, die Hyland aufgrund eines Verstoßes des Endnutzers gegen die Bestimmungen dieser Vereinbarung erleidet.
17.11 Sprache. Hyland kann andere Versionen dieser Geschäftsbedingungen in anderen Sprachen an diesem Online-Standort zur Verfügung stellen. Diese englischsprachige Version dieser Geschäftsbedingungen hat Vorrang vor jeder Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird, wenn das Vertragsdokument in Englisch ist. Wenn das Vertragsdokument in einer anderen Sprache als Englisch verfasst ist (eine solche Sprache wird als "andere Sprache" bezeichnet), diese Geschäftsbedingungen aber nicht in dieser anderen Sprache an diesem Online-Standort zur Verfügung gestellt werden, hat diese englische Version Vorrang vor jeder anderen Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird.
Anlage A
Abwerbeverbot. Einstellungsverbot
Abschnitt 15 der Vereinbarung (Abwerbeverbot; Einstellungsverbot) entspricht den in dieser Anlage A aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
„ Betroffene Personen“ sind alle Personen, (i) mit denen die einstellende Partei Kontakt hatte oder die der einstellenden Partei im Zusammenhang mit der Vereinbarung bekannt wurden, und (ii) die Mitarbeiter der anderen Partei sind oder waren, jeweils zu einem beliebigen Zeitpunkt während des Beschäftigungsverhältnisses dieser Person bei der anderen Partei oder innerhalb eines Jahres (1), nachdem diese Person aufgehört hat, Mitarbeiter der jeweils anderen Partei zu sein.
Während der Laufzeit dieser Vereinbarung und bis zu einem (1) Jahr nach Ablauf oder Beendigung der Vereinbarung werden weder der Kunde noch Hyland (es sei denn, eine der Parteien erhält die vorherige schriftliche Zustimmung der anderen Partei) folgendes unternehmen:
Für alle Hyland-Gesellschaften, die nicht in dieser Anlage A aufgeführt sind, gilt Abschnitt 15 (Abwerbeverbot; Einstellungsverbot) nicht.
Anlage B
Anwendbares Recht, Gerichtsstand.
Abschnitt 17.2 der Vereinbarung (Anwendbares Recht; Gerichtsstand) entspricht den in dieser Anlage B aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
Anlage C
Anwendbares Recht, Gerichtsstand.
Sofern es sich bei Hyland um Hyland Software Germany GmbH handelt, gilt die nachfolgende Anlage C:
Nach eigenem Ermessen von Hyland und nach schriftlicher Mitteilung an den Kunden sind alle überfälligen Rechnungsbeträge (mit Ausnahme der Bestrittenen Beträge) mit einem Zinssatz von neun (9) Prozentpunkten p.a. über den jeweils gültigen Zinssatz der EZB ab dem Fälligkeitsdatum bis zu dem Datum, an dem diese überfälligen Beträge und aufgelaufenen Zinsen vollständig gezahlt werden, zu verzinsen. Im Falle von: (a) Verzug des Kunden mit der Zahlung jeglicher Beträge (mit Ausnahme der Bestrittenen Beträge) und der Dauer dieses Verzugs von mindestens dreißig (30) Kalendertagen nach dem Fälligkeitsdatum einer solchen Zahlung; oder (b) wenn es den Parteien nicht gelingt, eine Streitigkeit in Bezug auf einen Bestrittenen Betrag innerhalb von sechzig (60) Tagen (oder innerhalb eines anderen von den Parteien schriftlich vereinbarten Zeitraums) nach Erhalt der schriftlichen Mitteilung über die rechtzeitige Beanstandung der Zahlung solcher Beträge durch Hyland beizulegen, hat Hyland das Recht, die Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung auszusetzen oder einzustellen, bis der Verzug behoben ist.
Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software, der Hyland Cloud Services, Add-On-Services, oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten, es sei denn, dies ist ausdrücklich gesetzlich erlaubt, weil es unerlässlich ist, diese Informationen zu erhalten, um die Interoperabilität eines unabhängig erstellten Computerprogramms mit anderen Programmen zu erreichen (§ 69e UrhG) oder zur Dekompilierung oder Vervielfältigung der Software nach den Bestimmungen des § 69d UrhG. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat, gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
10.1 Beschränkte Gewährleistung für Professionelle Dienstleistungen. Hyland gewährleistet gegenüber dem Kunden, dass die Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus (a), die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden; oder (b), die in Form von Personalaufstockung erbracht werden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von einem (1) Jahr ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnisse, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß diesem Abschnitt lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Gewährleistungsfrist schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder (a) das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann; oder (b) wenn Hyland feststellt, dass eine Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, dieser Vereinbarung in Bezug auf das nicht konforme Arbeitsergebnis kündigen; in diesem Fall erstattet Hyland, sofern der Kunde seinen Verpflichtungen bei der Kündigung nachkommt, einen Teil der vor dem Zeitpunkt der Kündigung bezahlten Dienstleistungsgebühren in Bezug auf die Erstellung und Implementierung eines solchen Arbeitsergebnisses. Die gesetzlichen Gewährleistungsrechte des Kunden bleiben vorbehaltlich der ausdrücklichen Bestimmungen dieser Vereinbarung unberührt.
10.4 Gewährleistungsausschluss.
Abschnitt 10.4 wird wie folgt ergänzt: Die gesetzlichen Gewährleistungsrechte des Kunden bleiben unberührt.
10.5 Folgendes wird als neuer Abschnitt 10.5 ergänzt:
In dem Maße, in dem die im Rahmen der vorliegenden Vereinbarung erbrachten Professionellen Dienstleistungen einen Werkvertrag darstellen, gelten in dieser Hinsicht die gesetzlichen Gewährleistungsbestimmungen mit folgender Einschränkung: Ausgenommen bei vorsätzlichem oder grob fahrlässigem Verhalten seitens Hyland wird die gesetzliche Gewährleistungsfrist auf ein Jahr beschränkt, beginnend mit der Abnahme der entsprechenden Professionellen Dienstleistungen.
Diese Gewährleistung schließt ausdrücklich nicht mit der Leistungsausführung zusammenhängende Probleme aus, die als Folge von Fehlfunktionen oder Mängeln bei Hard- oder Firmware, von Softwareprogrammen, die nicht von Hyland entwickelt wurden, von unrichtigen Daten oder unrichtigen Verfahren, die vom Kunden oder von Dritten verwendet bzw. vorgenommen werden, oder der Nichterfüllung seiner Verpflichtungen in Verbindung mit dem von dieser Vereinbarung erfassten Projekt von Seiten des Kunden entstehen. In diesen Fällen verpflichtet sich der Kunde, Hyland den Zeit- und Materialaufwand für Professionelle Dienstleistungen zu erstatten, die von Hyland auf Ersuchen des Kunden um Abhilfe bei nicht mit den Leistungen zusammenhängenden und damit ausgeschlossenen Problemen ausgeführt werden.
DIE HAFTUNG VON HYLAND IST BEI VORSATZ UND GROBER FAHRLÄSSIGKEIT UNBESCHRÄNKT. BEI LEICHTER FAHRLÄSSIGKEIT HAFTET HYLAND NUR: (A) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG DES LEBENS, DES KÖRPERS ODER DER GESUNDHEIT ERGEBEN, (B) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT (D.H. EINER PFLICHT, DEREN ERFÜLLUNG DIE ORDNUNGSGEMÄSSE DURCHFÜHRUNG DES VERTRAGES ÜBERHAUPT ERST ERMÖGLICHT UND AUF DEREN EINHALTUNG DER KUNDE REGELMÄSSIG VERTRAUEN DARF) ERGEBEN; IM FALLE DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT IST DIE HAFTUNG VON HYLAND AUF DEN ERSATZ DES VORHERSEHBAREN, TYPISCHERWEISE EINTRETENDEN SCHADENS BEGRENZT.
DIE VORSTEHENDEN HAFTUNGSBESCHRÄNKUNGEN GELTEN NICHT, WENN HYLAND EINEN MANGEL ARGLISTIG VERSCHWIEGEN ODER EINE GARANTIE FÜR DIE BESCHAFFENHEIT DER SOFTWARE ÜBERNOMMEN HAT. GLEICHES GILT FÜR ANSPRÜCHE NACH DEM PRODUKTHAFTUNGSGESETZ.
EINE WEITERGEHENDE HAFTUNG VON HYLAND IST AUSGESCHLOSSEN.
Eine Abtretung von Geldforderungen nach § 354a HGB bleibt hiervon unberührt.
Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig befunden wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall werden die Parteien die betroffene Bestimmung durch eine gemeinsame Vereinbarung in einer Weise ändern, in der die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung bestmöglich erreicht werden
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Confidential - Ó 2023 Hyland Software, Inc.
Effective October 19th 2023
DownloadTÉRMINOS Y CONDICIONES DE SERVICIOS PROFESIONALES
A la Fecha de Entrada en Vigor del Documento de Incorporación, estos Términos y Condiciones de Servicios Profesionales (estos "Términos y Condiciones") forman parte del Documento de Incorporación (como definido abajo en la Sección 1).
1. TÉRMINOS DEFINIDOS.
"Contrato" significa estos Términos y Condiciones, junto con el Documento de Incorporación.
"Cliente" significa la entidad que ha suscrito el Documento de Incorporación con Hyland. En el caso de que la contraparte sea un distribuidor autorizado de Hyland, se aplicará la Sección 17.10 de estos Términos y Condiciones.
"Importes en Disputa" significan los importes establecidos en cualquier factura en las que el Cliente haya notificado por escrito a Hyland, antes de la fecha de vencimiento de la factura, exponiendo las objeciones del Cliente, con un detalle razonable, a dichos importes.
"Documentación" significa: (a) en la medida en que estén disponibles, los "Archivos de Ayuda" incluidos en el Software, o (b) si no se incluyen "Archivos de Ayuda" en el Software, cualquier otra documentación publicada por Hyland, en cada caso, que esté relacionada con las características funcionales, operativas o de rendimiento del Software.
"Hyland" significa la compañía Hyland que forma parte del Documento de Incorporación.
"Documento de Incorporación" significa la Propuesta de Servicios, Hoja de Pedido u otro acuerdo o documento suscrito entre el Cliente y Hyland y dentro del cual se haga referencia o se enlace a estos Términos y Condiciones de Servicios Profesionales.
"Innovaciones" significan todos los diseños, procesos, procedimientos, métodos e innovaciones que son desarrolladas, descubiertas, concebidas o introducidas por Hyland, trabajando solo o en colaboración con otros, durante la ejecución del presente Contrato.
"Partes" significan Hyland y el Cliente y cada uno, una "Parte".
"Servicios Profesionales" significan los servicios prestados por Hyland en virtud del Documento de Incorporación.
"Acto Prohibido" significa (a) eliminación de cualquier aviso de copyright, marca comercial u otros derechos de propiedad que aparezcan durante el use del Software, de los Productos de Trabajo o de la Documentación ; (b) venta, transferencia, arrendamiento o sublicencia de cualquier Software, Productos de Trabajo o Documentación a un tercero; (c) salvo lo expresamente permitido con respecto al Software, los Productos de Trabajo, alterar o modificar el Software, los Productos de Trabajo o la Documentación; (d) realizar ingeniería inversa, desmontar, descompilar o intentar obtener el código fuente del Software, los Productos de Trabajo o la Documentación, o preparar trabajos derivados de los mismos; o (e) incumplir cualquier disposición de las Secciones 9, 13 o 14 de estos Términos y Condiciones.
"Software" significa el/los producto(s) o solución de software propiedad de Hyland para los que el Cliente ha obtenido una licencia válida de Hyland o de uno de sus distribuidores autorizados.
"Especificaciones" significan las especificaciones funcionales definitivas y finales de los Productos de Trabajo, en su caso, elaboradas por Hyland en virtud del Documento de Incorporación. Las Especificaciones deben ser consideradas Documentación, cuando se utilicen en el presente Contrato, en el caso de los Productos de Trabajo.
"Hora de Trabajo" significa los servicios de una (1) persona por un período de una (1) hora (o cualquier parte de la misma) durante el horario laboral habitual.
"Productos de Trabajo" significan todos los elementos que tengan la naturaleza de un producto de software, incluidos el código fuente, el código objeto, los scripts y cualquier componente o elemento de éstos, o los elementos creados utilizando las herramientas de configuración del Software, junto con todos y cada uno de los documentos de diseño asociados a los elementos que tengan la naturaleza de un producto de software, en cada caso creados, desarrollados, descubiertos, concebidos o introducidos por Hyland, trabajando solo o en colaboración con otros, en la prestación de los servicios previstos en el presente Contrato. Si es aplicable, los Productos de Trabajo incluirán cualquier plantilla preconfigurada o VBScripts que hayan sido o puedan ser creados o proporcionados de otro modo por Hyland al Cliente como parte de la configuración del módulo de captura avanzada del Software.
2. CUMPLIMIENTO. Hyland prestará los Servicios Profesionales descritos en el presente Contrato en el momento y según el cronograma establecidos en el presente Contrato o según lo acordado mutuamente por las Partes por escrito. Si se produjera algún retraso en la prestación de los Servicios Profesionales únicamente como consecuencia de cualquier información incorrecta, suposición incorrecta o incumplimiento por parte del Cliente de sus obligaciones en relación con el presente Contrato, podrá ampliarse el calendario de ejecución del proyecto aplicable. Hyland no tendrá responsabilidad alguna por los costes o gastos derivados de dichos retrasos. En caso de que no se cumpla algún hito establecido en el presente Contrato debido a un retraso causado exclusivamente por Hyland, y siempre que dicha causa no sea un caso de fuerza mayor, Hyland se compromete, sin cargo adicional para el Cliente, a destinar los recursos y el personal adicionales que sean necesarios para garantizar que dicho retraso no provoque el retraso de hitos posteriores o la finalización de los Servicios Profesionales. Las Partes acuerdan que los Servicios Profesionales o cualesquiera Productos de Trabajo descritos en el Documento de Incorporación que hayan sido realizados o desarrollados, en su totalidad o en parte, por Hyland antes de la ejecución de este Contrato, estarán cubiertos por todos los términos y condiciones de este Contrato.
3. CAMBIOS AL DOCUMENTO DE INCORPORACIÓN. Hyland o el Cliente podrán, en cualquier momento, solicitar razonablemente una modificación al Documento de Incorporación. Cualquier cambio que las Partes acepten mutuamente (en adelante "Cambio") se establecerá por un escrito preparado por Hyland y firmada por ambas Partes, que haga referencia específica al Documento de Incorporación. En caso de que las Partes no puedan llegar a un acuerdo mutuo sobre un Cambio propuesto o una orden de cambio propuesta, y dicho Cambio propuesto se refiera a un componente material del proyecto objeto del Documento de Incorporación, cualquiera de las Partes podrá rescindir el presente Contrato previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
4. OBLIGACIONES DEL CLIENTE.
4.1 Asistencia y obligaciones. El Cliente acepta que cooperará con Hyland y le prestará asistencia en la prestación de los Servicios Profesionales en virtud del presente Contrato, proporcionará los recursos especificados en el presente Contrato y realizará o cumplirá todas las obligaciones que el Cliente deba realizar o cumplir en virtud de los términos del presente Contrato. Durante cualquier periodo en el que Hyland preste servicios en virtud del presente, el Cliente proporcionará al equipo de proyecto de Hyland acceso local (in situ) y remoto (fuera de las instalaciones) independiente mediante el uso de conexiones seguras, como una conexión de red, una conexión VPN u otros métodos similares, y cuentas de usuario dedicadas con los privilegios adecuados al Software, hardware o máquinas virtuales aplicables asignados al sistema de Software aplicable. Se concederá acceso remoto y local para todos los entornos aprovisionados, incluida la producción. El Cliente reconoce que, si no presta asistencia o no realiza o cumple sus obligaciones de conformidad con el presente Contrato, la capacidad de Hyland para prestar los Servicios Profesionales, cumplir el calendario de rendimiento establecido en el presente Contrato y mantener las tarifas de servicios razonablemente en línea con cualquier estimación realizada en el presente Contrato puede verse afectada negativamente.
4.2 Derechos de Software de Terceros. A pesar de cualquier condición contraria, si el Cliente solicita a Hyland que preste Servicios Profesionales en o con respecto a cualquier software de terceros, el Cliente declara y garantiza a Hyland que el Cliente tiene todos los derechos necesarios para permitir que Hyland lo haga.
4.3 Protección de los Sistemas del Cliente. EXCEPTO EN LO RELATIVO A UNA SOLUCIÓN DE ALOJAMIENTO POR HYLAND, EL CLIENTE ENTIENDE QUE ES EL ÚNICO RESPONSABLE DE TOMAR LAS MEDIDAS ADECUADAS PARA AISLAR Y REALIZAR COPIAS DE SEGURIDAD O ARCHIVAR DE OTRO MODO SUS SISTEMAS INFORMÁTICOS, INCLUIDOS SUS PROGRAMAS INFORMÁTICOS, DATOS Y ARCHIVOS.
4.4 Entorno de Trabajo Seguro. El Cliente será responsable y se asegurará de que, mientras los empleados, agentes o subcontratistas de Hyland se encuentren en las instalaciones del Cliente, se tomen todas las precauciones legales y adecuadas en materia de salud y seguridad y estén plenamente operativas para proteger a dichas personas.
5. TARIFAS DE SERVICIOS. Salvo que se estipule lo contrario en el Documento de Incorporación: (a) Hyland cobrará al Cliente las tarifas de servicios por los Servicios Profesionales al precio de lista estándar de Hyland vigente en ese momento para los Servicios Profesionales aplicables y (b) Hyland facturará al Cliente las tarifas por los Servicios Profesionales mensualmente, a mes vencido, en función del número de Horas de trabajo necesarias para completar el proyecto y las tarifas por hora aplicables, y el Cliente abonará todos los importes de las facturas (salvo los Importes en Disputa) en su totalidad en un plazo de treinta (30) días a partir de la fecha de la factura. Cualquier estimación de las tarifas o de las Horas de Trabajo necesarias para completar el proyecto son aproximaciones del importe previsto de las tarifas y del tiempo necesario para completar el proyecto. El número real de Horas de Trabajo puede variar.
6. VIAJES Y GASTOS. El Cliente será responsable de pagar o reembolsar a Hyland todos los costes y gastos de bolsillo razonables en los que incurra Hyland en relación con la prestación de Servicios Profesionales en virtud del presente Contrato (incluidos las tarifas y gastos relativos a viajes, comidas, alojamiento y requisitos de registro de proveedores terceros) de conformidad con la política interna aplicable de Hyland para el reembolso de costes y gastos a sus empleados. Salvo que se estipule lo contrario en el Documento de Incorporación, Hyland facturará al Cliente todos los costes y gastos reembolsables mensualmente, a mes vencido; y el Cliente pagará en su totalidad cada una de las facturas emitidas en virtud del presente Contrato en un plazo neto de treinta (30) días a partir de la fecha en que Hyland emita dicha factura.
7. DETERMINADOS RECURSOS EN CASO DE IMPAGO O RETRASO EN EL PAGO. A elección de Hyland, que podrá ejercer mediante notificación por escrito al Cliente, cualquier importe vencido (salvo los Importes en Disputa) devengarán intereses a un tipo del uno y medio por ciento (1,5%) mensual (o, si es inferior, el tipo máximo legalmente exigible) desde la fecha de vencimiento hasta la fecha en que dichos importes vencidos y los intereses devengados se abonen en su totalidad. En caso de (a) incumplimiento por parte del Cliente en el pago de cualquier importe (salvo los Importes en Disputa) , cuyo incumplimiento continúe sin subsanarse durante al menos treinta (30) días naturales después de la fecha de vencimiento de dicho pago o (b) incapacidad de las Partes para resolver una disputa relacionada con un Importe en Disputa en un plazo de sesenta (60) días (o cualquier otro período acordado mutuamente, por escrito, por las Partes) tras la recepción por parte de Hyland de una notificación por escrito del Cliente en la que se impugne puntualmente el pago de dichos importes, Hyland tendrá derecho a suspender o cesar la prestación de cualquier Servicio Profesional el presente Contrato a menos que se haya subsanado dicho incumplimiento o se haya resuelto dicha disputa.
8. IMPUESTOS Y CARGAS GUBERNAMENTALES. Todos los pagos realizados en virtud del presente Contrato excluyen todos los impuestos y cargos gubernamentales aplicables (como aranceles), todos los cuales correrán a cargo del Cliente (salvo los impuestos sobre los ingresos de Hyland). En caso de que el Cliente esté obligado por ley a retener impuestos, el Cliente acepta proporcionar a Hyland todos los recibos y la documentación necesarios que justifiquen dicho pago. Si Hyland está obligado por ley a remitir cualquier impuesto o carga gubernamental en nombre o por cuenta del Cliente, el Cliente acepta reembolsar a Hyland en un plazo de treinta (30) días a partir de la fecha en que Hyland notifique al Cliente por escrito dicha remisión. El Cliente acepta proporcionar a Hyland certificados válidos de exención de impuestos antes de cualquier envío que Hyland deba realizar en nombre o por cuenta del Cliente, cuando dichos certificados sean aplicables.
9. PRODUCTOS DE TRABAJO.
9.1 Propiedad. EL PRESENTE CONTRATO NO ES UN CONTRATO DE TRABAJO POR ENCARGO. Hyland o sus proveedores conservan, con carácter exclusivo, para sí o para ellos, todos los derechos, títulos e intereses sobre cualquier propiedad intelectual desarrollada, descubierta, concebida o introducida por Hyland durante la ejecución del presente Contrato, incluidas, entre otras, todas las patentes, solicitudes de patentes, derechos de autor, marcas comerciales, otros derechos de propiedad intelectual y derechos de información confidencial y de propiedad sobre cualquier Producto de Trabajo, Innovación o Documentación, o relacionados con ellos. El Software, la Documentación y los Productos de Trabajo están protegidos por leyes de derechos de autor y tratados internacionales sobre derechos de autor, así como por otras leyes y tratados sobre propiedad intelectual. No se transfiere al Cliente ningún derecho de propiedad sobre el Software, las Innovaciones o los Productos de Trabajo. El Cliente acepta que nada de lo dispuesto en el presente Contrato o en los documentos asociados le otorga derecho, titularidad o interés alguno sobre el Software, la Documentación o los Productos de Trabajo, salvo los derechos expresos limitados que se conceden en el presente Contrato.
9.2 Licencia de los Productos de Trabajo. Hyland concede al Cliente una licencia limitada, no exclusiva y no transferible para utilizar los Productos de Trabajo únicamente en relación con el uso autorizado por parte del Cliente del Software o de otros productos o servicios de Hyland (conjuntamente, "Producto Principal de Hyland") con los que Hyland haya entregado dicho Producto de Trabajo para su uso por parte del Cliente. El Cliente no podrá: (a) realizar ni autorizar la realización de copias de ningún Producto de Trabajo; (b) eliminar ningún aviso de Hyland en los Productos de Trabajo; (c) vender, transferir, alquilar, contrato de leasing, tiempo compartido o sublicenciar los Productos de Trabajo a terceros; o (d) desensamblar, descompilar, realizar ingeniería inversa o intentar obtener el código fuente de cualquier Producto de Trabajo por cualquier motivo. Asimismo, el Cliente acepta que, en relación con cualquier uso de los Productos de Trabajo por parte del Cliente, los Productos de Trabajo no se copiarán ni instalarán en servidores adicionales a menos que el Cliente haya adquirido una licencia para ello. Se aplicarán a los Productos de Trabajo todas las restricciones de uso del Producto Principal de Hyland, incluidas, entre otras, las restricciones a la exportación y las disposiciones relativas al Usuario final del Gobierno de EE. UU. en virtud de los términos del acuerdo de licencia en virtud del cual el Cliente recibió el derecho a utilizar el Software con el que se utilizarán los Productos de Trabajo. Si la licencia del Producto Principal de Hyland con la que Hyland entregó dicho Producto de Trabajo para su uso por parte del Cliente finaliza, el derecho del Cliente a utilizar el Producto de Trabajo aplicable también finalizará. Todos los derechos y obligaciones posteriores a la finalización con respecto al Producto Principal de Hyland aplicable también se aplicarán al Producto de Trabajo.
9.3 Modificación de Productos de Trabajo.
(a) Forma de los Productos de Trabajo entregados. La forma en la que Hyland entregue los Productos de Trabajo será determinada por Hyland en función del propósito y la funcionalidad del Producto de Trabajo.
(b) Productos de Trabajo de Configuración. Si Hyland entrega un Producto de Trabajo: (a) en forma de (i) código fuente compilado por las herramientas del Software en lenguaje de máquina; o (ii) un script; o (b) creado utilizando las herramientas de configuración del Software (un "Producto de Trabajo de Configuración"), Hyland concede al Cliente el derecho limitado a modificar el Producto de Trabajo de Configuración, siempre que dicho Producto de Trabajo de Configuración modificado se utilice únicamente de conformidad con los términos de la licencia limitada para dicho Producto de Trabajo concedida en virtud de la presente Sección.
(c) Productos de Trabajo Independientes. Si Hyland entrega un Producto de Trabajo que no es un Producto de Trabajo de Configuración (un "Producto de Trabajo Independiente"), el Cliente no podrá alterar ni modificar dicho Producto de Trabajo Independiente, salvo que se indique lo contrario en la última frase de este párrafo. Si Hyland entrega un Producto de Trabajo Independiente y el Cliente desea obtener el derecho a modificarlo, las Partes podrán acordar mutuamente que Hyland entregue al Cliente una copia del formato del Producto de Trabajo Independiente que sea necesaria para que el Cliente pueda completar sus modificaciones, siempre y cuando el Cliente realice a Hyland el previo pago de cualquier tarifas adicionales por Servicios Profesionales que Hyland pueda cobrar por preparar y entregar dicho formato. En tal caso, Hyland concede al Cliente el derecho a modificar y, si fuera necesario, compilar el formato entregado del Producto de Trabajo Independiente, siempre que dicho Producto de Trabajo Independiente modificado se utilice únicamente de conformidad con los términos de la licencia limitada de dicho Producto de Trabajo concedida en virtud de la presente Sección.
9.4 Indemnización por Infracción de los Productos de Trabajo. Hyland acepta indemnizar al Cliente por cualquier responsabilidad y gasto, incluidos los honorarios razonables de abogados, derivados o relacionados con cualquier reclamación, acción o procedimiento de terceros iniciado contra el Cliente basado en cualquier infracción o apropiación indebida por parte de los Productos de Trabajo de cualquier patente, derecho de autor registrado o marca comercial registrada de un tercero, siempre que Hyland: (i) sea notificado rápidamente después de que el Cliente reciba la notificación de dicha reclamación; (ii) sea el único encargado de la defensa y de las negociaciones para llegar a un acuerdo con respecto a dicha reclamación, siempre que Hyland no llegue a un acuerdo con respecto a dicha reclamación sin el consentimiento previo por escrito del Cliente si dicho acuerdo contiene una estipulación o admisión o reconocimiento de cualquier responsabilidad o acto ilícito por parte del Cliente o requiere de otro modo un pago por parte del Cliente; (iii) reciba la cooperación razonable del Cliente en la defensa o resolución de dicha reclamación; y (iv) tenga derecho, en caso de que se produzca o sea probable (en opinión de Hyland) que se produzca una infracción o apropiación indebida, a obtener para el Cliente el derecho a seguir utilizando los Productos de Trabajo o a sustituir las partes pertinentes de los Productos de Trabajo por otras partes equivalentes que no supongan una infracción.
(a) Retirada y reembolso. Si Hyland no puede llevar a cabo ninguna de las opciones establecidas en la Sección 9.4(iv), Hyland retirará la parte infractora de los Productos de Trabajo y reembolsará al Cliente las tarifas de servicios abonadas, en su caso, por el Cliente en relación únicamente con la creación e implementación de los Productos de Trabajo infractores en virtud del presente Contrato.
(b) Exclusiones. Sin perjuicio de cualquier disposición en contrario, Hyland no tendrá obligación alguna ante el Cliente de defender o satisfacer ninguna reclamación presentada contra el Cliente y descrita de otro modo en la Sección 9.4 que surja de: (i) el Cliente utilizó los Productos de Trabajo por parte del Cliente de forma expresamente no permitida por el presente Contrato; (ii) la combinación de los Productos de Trabajo con cualquier producto no suministrado por Hyland al Cliente; (iii) la modificación o adición de los Productos de Trabajo por parte de otro que no sea Hyland o cualquiera de sus distribuidores autorizados contratados específicamente por Hyland para proporcionar dicha modificación o adición; o (iv) los métodos, procesos, información o datos empresariales del Cliente.
(c) ESTA SECCIÓN 9.4 ESTABLECE LA RESPONSABILIDAD TOTAL DE HYLAND Y EL RECURSO ÚNICO Y EXCLUSIVO DEL CLIENTE CON RESPECTO A CUALQUIER SUPUESTA INFRACCIÓN O APROPIACIÓN INDEBIDA DE PROPIEDAD INTELECTUAL O PROPIEDAD INTELECTUAL POR LOS PRODUCTOS DE TRABAJO.
10. GARANTÍA LIMITADA PARA SERVICIOS Y PRODUCTOS DE TRABAJO.
10.1 Garantía Limitada para los Servicios Profesionales. Durante un periodo de sesenta (60) días a partir de la fecha de finalización de los Servicios Profesionales, Hyland garantiza al Cliente que dichos Servicios Profesionales se han prestado de forma correcta y profesional y sustancialmente de acuerdo con los estándares del sector. Esta garantía excluye específicamente los problemas de rendimiento causados por datos o procedimientos incorrectos utilizados o proporcionados por el Cliente o un tercero, o por fallos del Cliente para realizar y cumplir sus obligaciones en virtud del presente Contrato.
10.2 Garantía limitada de los Productos de Trabajo. Durante un periodo de sesenta (60) días a partir de la fecha en que Hyand haya entregado al Cliente un Producto de Trabajo terminado, Hyland garantiza al Cliente que dicho Producto de Trabajo, cuando se instale y utilice correctamente, funcionará en todos los aspectos materiales tal y como se describe en las Especificaciones. Los términos de esta garantía no se aplicarán a, y Hyland no tendrá ninguna responsabilidad por cualquier no conformidad relacionada con, cualquier Producto de Trabajo que haya sido (a) modificado o añadido por el Cliente o un tercero, (b) utilizado en combinación con equipos o software distintos de los que se ajustan a las Especificaciones, o (c) mal utilizado o abusado.
10.3 Recurso. La única obligación de Hyland, y el único y exclusivo recurso del Cliente en caso de no conformidad con las garantías limitadas expresas de las Secciones 10.1 y 10.2 serán los siguientes: siempre que, dentro del periodo aplicable de sesenta (60) días, el Cliente notifique por escrito a Hyland la no conformidad, Hyland realizará todos los esfuerzos razonables para volver a prestar los servicios no conformes en un intento de corregir la(s) no conformidad(es) o, en el caso de un Producto de Trabajo, reparar o sustituir el Producto de Trabajo no conforme, lo que puede incluir la entrega de una solución comercialmente razonable para subsanar la no conformidad. Si Hyland no puede corregir dicha(s) disconformidad(es) tras un periodo de tiempo razonable o determina que la reparación o sustitución del Producto de Trabajo no es comercialmente razonable, el único y exclusivo recurso del Cliente será rescindir el presente Contrato, en cuyo caso Hyland reembolsará al Cliente la parte de las tarifas de servicios en virtud del presente Contrato relacionados directamente con dichos Servicios Profesionales disconformes o con la creación e implementación del Producto de Trabajo disconforme, en cualquier caso abonados antes de dicha rescisión.
10.4 Exclusión de garantías. SALVO EN LOS CASOS INDICADOS ANTERIORMENTE, HYLAND Y SUS PROVEEDORES NO OFRECEN NINGUNA GARANTÍA NI DECLARACIÓN EN RELACIÓN CON LOS PRODUCTOS DE TRABAJO, LAS INNOVACIONES, LA INFORMACIÓN O LOS SERVICIOS PROFESIONALES PRESTADOS EN VIRTUD DEL PRESENTE CONTRATO. HYLAND Y SUS PROVEEDORES RECHAZAN Y EXCLUYEN CUALQUIER OTRA GARANTÍA EXPRESA, IMPLÍCITA Y LEGAL, INCLUIDAS, ENTRE OTRAS, LAS GARANTÍAS CONTRA INFRACCIONES, LAS GARANTÍAS IMPLÍCITAS DE COMERCIABILIDAD E IDONEIDAD PARA UN FIN DETERMINADO, Y LAS GARANTÍAS QUE PUEDAN SURGIR O CONSIDERARSE SURGIDAS DE CUALQUIER CURSO DE EJECUCIÓN, CURSO DE NEGOCIACIÓN O USO COMERCIAL. HYLAND Y SUS PROVEEDORES NO GARANTIZAN QUE LOS SERVICIOS PROFESIONALES O LOS PRODUCTOS DE TRABAJO PROPORCIONADOS SATISFAGAN LOS REQUISITOS DEL CLIENTE O ESTÉN EXENTOS DE DEFECTOS O ERRORES, NI QUE EL FUNCIONAMIENTO DEL SOFTWARE O DE LOS PRODUCTOS DE TRABAJO PROPORCIONADOS EN VIRTUD DEL PRESENTE CONTRATO SEA ININTERRUMPIDO. SALVO QUE SE INDIQUE EXPRESAMENTE EN EL PRESENTE CONTRATO, HYLAND NO ASUME RESPONSABILIDAD ALGUNA CON RESPECTO AL HARDWARE, FIRMWARE, SOFTWARE O SERVICIOS DE TERCEROS.
11. RESCISIÓN.
11.1 En General. Salvo que se indique lo contrario en un Documento de Incorporación , o las partes acuerden lo contrario por escrito, el Cliente o Hyland podrán rescindir el presente Contrato, por cualquier motivo, previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
11.2 Por Cualquiera de las Partes. Cualquiera de las Partes podrá rescindir el presente Contrato en su totalidad, con efecto inmediato previa notificación por escrito a la otra Parte, si la otra Parte ha incumplido una disposición sustancial del presente Contrato y no ha subsanado el incumplimiento en un plazo de treinta (30) días a partir de la recepción de la notificación por escrito del incumplimiento enviada por la Parte que no ha incumplido; no obstante, Hyland no estará obligado a dar al Cliente ninguna oportunidad de subsanar ningún incumplimiento en el caso de cualquier Acto Prohibido, todos los cuales se consideran, a todos los efectos, disposiciones sustanciales del presente Contrato.
11.3 Rescisión del Presente Contrato. En caso de rescisión del presente Contrato, el Cliente acepta compensar a Hyland por todos los Servicios Profesionales ya prestados antes de la fecha de rescisión, incluida ésta, salvo en la medida que Hyland haya incumplido sus obligaciones de prestar dichos Servicios Profesionales y dicho incumplimiento sea la causa de la rescisión.
11.4 Efectos de la Rescisión. En caso de rescisión del presente Contrato en su totalidad (a menos que sea alegada por Hyland debido al incumplimiento del Cliente), la licencia del Cliente para utilizar los Productos de Trabajo previstos en el presente Contrato seguirá vigente de acuerdo con los términos previstos.
12. LIMITACIONES DE RESPONSABILIDAD.
12.1 NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, OMISIÓN O CUALQUIER OTRA TEORÍA LEGAL, DE NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENTE, NI DE NINGUNA PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUIDOS LAS TARIFAS DEBIDOS EN VIRTUD DEL PRESENTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REPARACIÓN DE LA COBERTURA, O DAÑOS POR INTERRUPCIÓN DEL NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE DICHOS DAÑOS, PÉRDIDAS, GASTOS O COSTES.
12.2 LA RESPONSABILIDAD TOTAL Y ACUMULATIVA DE HYLAND (INCLUIDOS SUS FILIALES Y PROVEEDORES) DERIVADA DEL PRESENTE CONTRATO, YA SEA CONTRACTUAL O EXTRACONTRACTUAL, (INCLUIDA LA NEGLIGENCIA, O CUALQUIER OTRA TEORÍA LEGAL) NO SUPERARÁ EN NINGÚN CASO LOS IMPORTES TOTALES PAGADOS REALMENTE A HYLAND POR EL CLIENTE (MENOS CUALQUIER REEMBOLSO O CRÉDITO) POR LA PRESTACIÓN DE LOS SERVICIOS QUE DEN LUGAR A LA RECLAMACIÓN DURANTE EL PERÍODO DE DOCE (12) MESES INMEDIATAMENTE ANTERIOR AL PRIMER EVENTO QUE DÉ LUGAR A DICHA RECLAMACIÓN. CON RESPECTO A CUALQUIER PRODUCTO O SERVICIO PROFESIONAL PROPORCIONADO AL CLIENTE DE FORMA GRATUITA (COMO SOFTWARE O SERVICIOS DE EVALUACIÓN), NI HYLAND NI NINGUNA DE SUS FILIALES O PROVEEDORES SERÁN RESPONSABLES DE LOS DAÑOS.
13. EXPORTACIÓN. El Software, los Productos de Trabajo o la Documentación suministrados en virtud del presente Contrato están sujetos a las leyes de control de exportaciones de los Estados Unidos y otras jurisdicciones. El Cliente se compromete a cumplir plenamente todas las leyes pertinentes de control de las exportaciones, incluidos los reglamentos del Departamento de Comercio de los Estados Unidos y todas las leyes de control de las exportaciones de los Estados Unidos, incluidos, entre otros, los Regulaciones de Administración de Exportaciones (EAR) del Departamento de Comercio de los Estados Unidos, para garantizar que el Software, los Productos de Trabajo o la Documentación no se exporten infringiendo la legislación de los Estados Unidos de América o las leyes y regulaciones de otras jurisdicciones. El Cliente acepta que no exportará ni reexportará el Software, los Productos de Trabajo o la Documentación a ninguna organización o nacional de los territorios con embargo de los Estados Unidos de América de Cuba, Irán, Corea del Norte, Sudán, Siria o cualquier otro territorio o nación con respecto a los cuales el Departamento de Comercio de los Estados Unidos de América, el Departamento de Estado de los Estados Unidos de América, el Departamento del Tesoro de los Estados Unidos de América, la U.E. y/o cualquier otro Estado nacional mantengan algún programa de sanciones por actividades comerciales. El Cliente no utilizará el Software, los Productos de Trabajo ni la Documentación para ningún uso prohibido en virtud de las leyes y normativas aplicables de los Estados Unidos de América y otras jurisdicciones, incluyendo, pero sin limitarse a, cualquier aplicación relacionada con, o con fines asociados a, la guerra nuclear, química o biológica, la tecnología de misiles (incluidos los vehículos aéreos no tripulados), la aplicación militar o cualquier otro uso prohibido o restringido en virtud de la Normativa de Administración de Exportaciones de los Estados Unidos de América (EAR) o cualquier otra ley, norma o regulación pertinente de los Estados Unidos de América y otras jurisdicciones.
14. INFORMACIÓN CONFIDENCIAL.
14.1 La "Información Confidencial" será aquella información que esté marcada como "Privada" o "Confidencial", que sea conocida por el destinatario como confidencial o que su naturaleza sea habitualmente sea confidencial entre partes comerciales, salvo lo dispuesto en la siguiente frase. La Información Confidencial no incluirá información que (a) sea o pase a ser generalmente conocida por el público sin incumplimiento del presente Contrato por parte del destinatario, o (b) el destinatario demuestre que ha estado en su posesión antes de su divulgación por la parte divulgadora, o (c) el destinatario reciba de un tercero que no esté sujeto, a conocimiento del destinatario, a restricciones, obligaciones o deberes de no divulgación a la parte divulgadora, o (d) el destinatario demuestre que ha sido desarrollada de forma independiente por el destinatario sin referencia o uso de la información de la parte divulgadora.
14.2 Cada una de las partes acuerda que, con respecto a la Información Confidencial de la otra Parte, o de sus filiales, dicha Parte, como receptora, utilizará el mismo grado de cuidado para proteger su propia Información Confidencial, pero en ningún caso menos que el cuidado razonable, y no utilizará ni revelará a terceros dicha Información Confidencial, salvo en la medida en que lo exija la ley o una orden judicial, o según lo dispuesto en el presente Contrato. El Cliente se compromete a tomar las medidas razonables para proteger todos los Productos de Trabajo e Innovaciones, así como cualquier Documentación relacionada, entregados por el Hyland al Cliente en virtud del Contrato frente a copias o usos no autorizados. Cada una de las Partes será responsable de cualquier incumplimiento de esta Sección 14 cometido por cualquiera de sus empleados, agentes, consultores, contratistas o representantes.
14.3 Las Partes reconocen que un recurso legal por incumplimiento de las disposiciones del presente Contrato relativas a la Información Confidencial y a los derechos de propiedad intelectual no será adecuado para la protección de la parte perjudicada y, en consecuencia, la parte perjudicada tendrá derecho a solicitar, además de cualquier otra reparación y recurso a su disposición, un cumplimiento específico o medidas cautelares para hacer cumplir las disposiciones del presente Contrato.
15. NO CAPTACIÓN; NO CONTRATACIÓN. Véase el Anexo A adjunto.
16. TÉRMINOS Y CONDICIONES ADICIONALES. Si Hyland es una de las compañías de Hyland que se indican a continuación, se aplicarán los términos y condiciones adicionales o alternativos establecidos en el Anexo de términos adicionales aplicable que se indica a continuación:
| Compañía de Hyland | Anexo de Términos Adicionales |
| Hyland Colombia S.A.S. | Anexo C |
| Hyland Mexico S. de R.L. de C.V. | Anexo D |
| Hyland Software, Inc., si el Cliente se localiza en Perú | Anexo E |
17. CONDICIONES GENERALES.
17.1. Fuerza Mayor. Ningún incumplimiento, retraso o falta de cumplimiento de cualquier obligación de una Parte (excepto el pago de dinero) constituirá un incumplimiento o violación en la medida en que dicho incumplimiento, retraso o falta de cumplimiento surja de una causa, existente o futura, fuera del control (incluyendo, pero no limitado a: acción o inacción de la autoridad gubernamental, civil o militar; incendio; huelga, cierre patronal u otro conflicto laboral; inundación; guerra; disturbios; robo; terremoto; desastre natural o caso fortuito; emergencias nacionales; indisponibilidad de materiales o servicios públicos; sabotaje; virus; o acto, negligencia o incumplimiento de la otra Parte) y sin negligencia o dolo de la Parte a la que se imputa el incumplimiento, retraso o incumplimiento. Cualquiera de las Partes que desee invocar alguna de las causas anteriores como excusa para el incumplimiento, la demora o el retraso en el cumplimiento deberá, cuando surja la causa, notificar a la otra Parte sin demora y por escrito los hechos que constituyen dicha causa; y, cuando la causa deje de existir, notificar este hecho sin demora a la otra Parte. La presente Sección 17.1 no limitará en modo alguno el derecho de cualquiera de las Partes a reclamar a terceros por los daños sufridos debido a dichas causas. Si cualquier fecha de cumplimiento en virtud del presente Contrato se pospone o prorroga de conformidad con la presente Sección 17.1 durante más de noventa (90) días naturales, la otra Parte, mediante notificación por escrito entregada durante el aplazamiento o la prórroga, y al menos treinta (30) días antes de la fecha efectiva de rescisión, podrá rescindir el presente Contrato.
17.2. Ley aplicable; Jurisdicción. Véase el Anexo B adjunto.
17.3 Efecto Vinculante; Cesiones. El presente Contrato será vinculante y adaptará en beneficio de las Partes y de sus respectivos sucesores y cesionarios autorizados. Ninguna de las Partes podrá ceder, transferir o sublicenciar la totalidad o parte del presente Contrato o sus derechos u obligaciones en virtud del mismo, en su totalidad o en parte, a cualquier otra persona o entidad sin el consentimiento previo por escrito de la otra Parte; siempre que dicho consentimiento no sea denegado injustificadamente en el caso de cualquier cesión o transferencia por una Parte del presente Contrato en su totalidad a la entidad superviviente de una fusión o consolidación o a cualquier comprador de sustancialmente todos los activos de dicha Parte que asuma por escrito todas las obligaciones y deberes de dicha Parte en virtud del presente Contrato. Cualquier cesión realizada sin cumplir las disposiciones de esta Sección será nula y sin efecto. No obstante cualquier disposición en contrario, Hyland puede ceder este Contrato a cualquier filial de Hyland sin el consentimiento de la otra parte mediante notificación por escrito a la otra parte. El Cliente reconoce que Hyland y/o cualquiera de sus filiales puede cumplir cualquiera de las obligaciones de Hyland contempladas en el presente Contrato.
17.4 Subcontratación. Hyland podrá subcontratar la totalidad o parte de los Servicios Profesionales, siempre que Hyland siga siendo responsable ante el Cliente de la prestación de los servicios subcontratados.
17.5 Contratista Independiente. Las Partes reconocen que Hyland es un contratista independiente y que será responsable de sus obligaciones como empleador de las personas que presten los Servicios Profesionales.
17.6 Terceros. Nada de lo aquí expresado o implícito pretende o deberá interpretarse para conferir o dar a cualquier persona o entidad, distinta de las Partes, ningún derecho o recurso en virtud del presente Contrato; sin embargo, los terceros proveedores de productos de software incluidos con el Software son terceros beneficiarios del presente Contrato en la medida en que se aplique a sus respectivos productos de software.
17.7 Integración. El presente Contrato, incluido cualquier exhibit, anexo o acuerdo adjunto al presente Contrato o al que se haga referencia en el mismo, establece la totalidad del acuerdo y entendimiento de las Partes en relación con el objeto de este y sustituye todos los acuerdos, negociaciones y discusiones anteriores entre ellas sobre el mismo objeto. Cualquier otro término que varíe o se añada a los términos de este Contrato, ya sea contenido en cualquier orden de compra u otra comunicación electrónica, escrita u oral hecha de una Parte a la otra, es rechazado y será nulo y sin fuerza o efecto a menos que se incluya en una enmienda escrita firmada mutuamente por las Partes. En la medida en que exista un conflicto entre estas Condiciones Generales y el Documento de Incorporación, prevalecerán los términos de estas Condiciones Generales.
17.8 Divisibilidad. Si alguna disposición del presente Contrato es considerada inaplicable o inválida por una autoridad competente, dicha inaplicabilidad o invalidez no hará que el presente Contrato sea inaplicable o inválido en su totalidad y, en tal caso, dicha disposición se modificará e interpretará de forma que cumpla de la mejor manera posible los objetivos de dicha disposición inaplicable o inválida dentro de los límites de la legislación aplicable o de las decisiones judiciales aplicables.
17.9 Políticas Corporativas. Hyland reconoce que el Cliente mantiene políticas corporativas que se aplican a las personas que prestarán servicios utilizando las instalaciones o el sistema del Cliente (colectivamente, las “Políticas Corporativas”). Al prestar Servicios Profesionales en virtud de este Contrato, Hyland realizará esfuerzos razonables para cumplir con las Políticas Corporativas en la medida en que dichas Políticas Corporativas sean aplicables a la prestación de dichos Servicios Profesionales, no entren en conflicto con el Contrato ni con ningún otro acuerdo relacionado vigente entre Hyland y el Cliente y se hayan facilitado a Hyland con una antelación razonable a la contratación de los Servicios Profesionales. Sin perjuicio de cualquier disposición en contrario en dichas Políticas Corporativas, si un recurso de Hyland incumple las Políticas Corporativas y dicho incumplimiento no constituye de otro modo un incumplimiento de este Contrato, el Cliente reconoce y acepta que Hyland no habrá incumplido el contrato ni será responsable de otro modo por daños y perjuicios, y como único recurso del Cliente, el Cliente podrá retirar inmediatamente de sus instalaciones el/los recurso(s) individual(es) responsable(s) del incumplimiento y exigir que dicho(s) recurso(s) individual(es) no realice(n) más Servicios Profesionales para el Cliente.
17.10 Distribuidor Autorizado. En la medida en que el Cliente sea un distribuidor autorizado de Hyland, el Documento de Incorporación haya sido suscrito por el Cliente en beneficio de un usuario final (un "Usuario Final"), y dicho Usuario Final no haya suscrito previamente un contrato independiente con Hyland que rija los Servicios Profesionales prestados en virtud del Documento de Incorporación, se aplicarán los términos de esta Sección.
El Cliente y Hyland reconocen y acuerdan que Hyland presta Servicios profesionales al Cliente en beneficio del Usuario final; por lo tanto, el Cliente (a) declara y garantiza que ha suscrito un contrato vinculante con el Usuario final en relación con el proyecto, en virtud del cual se permite al Cliente contratar a Hyland como subcontratista para prestar los Servicios profesionales contemplados en el presente Contrato; (b) acuerda que la licencia de los Productos de trabajo de la Sección 9. 2 será sublicenciada por el Cliente al Usuario Final, sujeta a las restricciones establecidas en la misma y que, aparte del derecho a sublicenciar los Productos de Trabajo, la licencia de los Productos de Trabajo no se extiende al Cliente; y (c) acepta que hará que el Usuario Final cumpla las disposiciones de este Contrato que son vinculantes para el Cliente como si el Usuario Final fuera una Parte, incluyendo facilitar la cooperación del Usuario Final según lo solicitado por Hyland para proporcionar los Servicios Profesionales y hacer que el Usuario Final cumpla las restricciones y limitaciones contenidas en el presente documento. Además, el Cliente acepta que será responsable del cumplimiento de este Contrato por parte del Usuario final y acepta expresamente indemnizar a Hyland por todas las reclamaciones, responsabilidades, pérdidas, daños y costes, incluidos los honorarios razonables de abogados y las costas judiciales, sufridos o incurridos por Hyland derivados de cualquier incumplimiento por parte del Usuario final de cualquiera de las disposiciones de este Contrato.
17. 11 El Idioma que Controla. Hyland puede poner a disposición otras versiones de estas Condiciones Generales en otros idiomas en esta ubicación en línea. Esta versión en español de estas Condiciones Generales prevalece sobre cualquier versión de estas Condiciones Generales disponible en esta ubicación en línea en otro idioma si el Documento de Incorporación está en español. Si el Documento de Incorporación está redactado en un idioma distinto del español ("Otro Idioma"), pero estas Condiciones Generales no están disponibles en esta ubicación en línea en el Otro idioma, esta versión en español prevalece sobre cualquier otra versión de las Condiciones Generales que pueda estar disponible en esta ubicación en línea en otro idioma.
Anexo A
No Captación; No Contratación
La Sección 15 del Contrato (No Captación; No Contratación) serán los términos establecidos en este Anexo A, basados en la compañía Hyland aplicable que se enumera a continuación:
“Personas Restringidas” significa cualquier persona (i) con la que la parte contratante haya tenido contacto o que haya llegado a ser conocida por la parte contratante en relación con el Contrato; y (ii) que sea o haya sido empleado de la otra parte, en cada caso en cualquier momento durante el empleo de dicha persona por la otra parte o en el plazo de un (1) año después de que dicha persona haya dejado de ser empleado de la otra parte.
Durante la vigencia de este Contrato y durante un (1) año tras la expiración o rescisión del Contrato, ni el Cliente ni Hyland podrá (salvo en la medida en que cualquiera de las partes reciba el consentimiento previo por escrito de la otra parte):
(a) solicitar empleo o contratación como contratista independiente para la parte solicitante o para cualquier otro tercero a una Persona Restringida, o animar o ayudar de cualquier otro modo a dicha Persona Restringida a abandonar el empleo de la otra parte por cualquier motivo, en cada caso en cualquier momento durante el empleo de dicha Persona Restringida por la otra parte o en el plazo de un año (1) después de que dicha persona haya dejado de ser empleada de la otra parte; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona que sea un Individuo Restringido.
(c) Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con la Sección 15(a). Las Partes acuerdan que esta disposición subsiste tras la rescisión del Contrato.
(d) La Sección 15(d) del Contrato serán los términos establecidos a continuación, basados en la compañía de Hyland aplicable que se enumera a continuación:
1. Hyland Software, Inc. Si Hyland es Hyland Software, Inc. (excepto en la medida en que el Cliente esté ubicado en Perú), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, o Hyland Poland Spolka Z.O.O., se aplicarán los siguientes términos como Sección 15(d):
Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de los abogados.
2. Hyland Software Brasil Ltda. Si Hyland es Hyland Software Brasil Ltda, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual a Ciento Noventa Mil Reales (R$190.000,00), y todos los costos asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo pero no limitado a honorarios razonables de abogados.
3. Hyland Software Germany GMBH. Si Hyland es Hyland Software Germany GMBH, se aplicarán los siguientes términos como Sección 15(d): Cada violación culpable de esta disposición por una parte da derecho a la otra a un pago por un importe igual a Cincuenta Mil Euros (50.000,00 €), y todos los costes asociados con el cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
Además, sin perjuicio de cualquier disposición en contrario en el presente documento, la subsección 15(c) anterior será modificada y sustituida en su totalidad de la siguiente manera: Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con las Secciones 15(a) y 15(b). Las Partes acuerdan que esta disposición subsistirá a la terminación del Contrato.
4. Hyland Software Mexico S. de R.L. de C.V. Si Hyland es Hyland Software Mexico S. de R.L. de C.V., los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de abogados.
5. Hyland Switzerland SARL. Si Hyland es Hyland Switzerland SARL, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra a un pago por un importe igual a Cincuenta Mil Francos Suizos (CHF50.000,00), y todos los costes asociados al cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
6. Hyland UK Operations Limited. Si Hyland es Hyland UK Operations Limited los siguientes términos se aplicarán como Sección 15(d):
7. Hyland Software Canada ULC. Si Hyland es Hyland Software Canada ULC, los siguientes términos se aplicarán como Sección 15 del Contrato (No Captación; No Contratación):
Durante la vigencia del presente Contrato, el Cliente no podrá:
(a) solicitar empleo o ser contratado como contratista independiente para sí mismo o para un tercero a una persona que sea empleado de Hyland, ni animar o ayudar de otro modo a dicha persona a abandonar el empleo de Hyland por cualquier motivo; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona: (i) con la que el Cliente haya tenido contacto o que haya llegado a ser conocida por el Cliente en relación con este Contrato; y (ii) que sea empleado de Hyland;
(c) Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del empleado inmediatamente antes de dejar el servicio de la otra parte, y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo, pero no limitado a, los honorarios razonables de abogados. Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con esta Sección 15.
Para cualquier compañía de Hyland a la que no se haga referencia en este Anexo A, no se aplicará la Sección 15 (No Captación; No Contratación).
Anexo B
Ley aplicable; Jurisdicción
La Sección 17.2 del Contrato (Ley aplicable; Jurisdicción) será la establecida en este Anexo B, basada en la compañía Hyland aplicable que se indica a continuación:
siempre y cuando, si Hyland está prestando servicios dentro de los siguientes países, los términos identificados a continuación se aplicarán en lugar de los términos anteriores:
1. Perú. El presente Contrato y cualquier reclamación, acción, pleito, procedimiento o controversia que se derive del mismo se regirán en todos los aspectos por, y se interpretarán de conformidad con, las Leyes sustantivas de la República del Perú, a excepción de los Conflictos de Leyes (y no por la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980, en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. En caso de cualquier controversia en relación con el presente Contrato, incluyendo su interpretación, validez y existencia, dicha controversia se resolverá mediante arbitraje de derecho, bajo las normas del Tribunal Arbitral de la Cámara de Comercio de Lima. El panel arbitral estará conformado por tres árbitros designados de conformidad con dicho reglamento. Cada Parte podrá designar un árbitro y los dos árbitros designados designarán un tercer árbitro que actuará como presidente del panel.
2. Singapur. El presente Contrato y cualquier reclamación, acción, litigio, procedimiento o controversia que se derive del mismo se regirá e interpretará en todos sus aspectos de conformidad con el derecho sustantivo de la República de Singapur (y no con la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980 ni con la Ley Uniforme de Transacciones Informáticas, ambas en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. Los tribunales de Singapur serán los únicos competentes para conocer de cualquier acción, litigio o procedimiento derivado del presente Contrato.
Anexo C
Anexo de Términos Adicionales para Hyland Colombia S.A.S.
Si Hyland es Hyland Colombia S.A.S., se aplicará el presente Anexo C:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo D
Anexo de Términos Adicionales para Hyland Mexico S. de R.L. de C.V.
Si Hyland es Hyland Mexico S. de R.L. de C.V., se aplicará el presente Anexo D:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en el Artículo 1916 del Código Civil Federal Mexicano.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo E
Anexo de Términos Adicionales para Hyland Software, Inc. – Perú
Si Hyland es Hyland Software, Inc., pero Hyland está prestando servicios dentro del país de Perú, se aplicará este Anexo E:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en los artículos 1984 y 1322 del Código Civil.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
(The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.)
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 3rd 2023 to October 19th 2023
DownloadTable of Contents
PROFESSIONAL SERVICES TERMS AND CONDITIONS
As of the Effective Date of the Incorporating Document, these Professional Services Terms and Conditions (these “Terms and Conditions”) are part of the Incorporating Document (as defined in Section 1, below).
1. DEFINED TERMS.
“Agreement” means these Terms and Conditions, together with the Incorporating Document.
“Customer” means the entity that has entered into the Incorporating Document with Hyland. In the case that the counterparty is a certified channel partner of Hyland’s, Section 17.10 of these Terms and Conditions shall apply.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Hyland” means the Hyland company that is a party to the Incorporating Document.
“Incorporating Document” means the Services Proposal, Order Form or other agreement or document entered into between Customer and Hyland and within which these Professional Services Terms and Conditions are referenced or linked.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Hyland and Customer and each, a “Party”.
“Professional Services” means the services performed by Hyland under the Incorporating Document.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 13 or 14 of these Terms and Conditions.
“Software” means Hyland’s proprietary software product(s) or solution for which Customer has obtained a valid license from Hyland or one of its authorized channel partners.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under the Incorporating Document. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Hyland will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure, Hyland agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Incorporating Document that have been performed or developed, in whole or in part, by Hyland prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO INCORPORATING DOCUMENT. Hyland or Customer may, at any time, reasonably request a change to the Incorporating Document. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Hyland and signed by both Parties, that specifically references the Incorporating Document. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Incorporating Document, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Hyland is performing services hereunder, Customer shall provide to Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Hyland’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in the Incorporating Document: (a) Hyland will charge services fees to Customer for the Professional Services at Hyland’s then-current standard list price for the applicable Professional Services and (b) Hyland shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all invoice amounts (other than Disputed Amounts) in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Hyland for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Incorporating Document, Hyland shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Hyland issues such invoice.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS.
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Hyland or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Hyland during the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Hyland grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Hyland products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
(a) Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
(b) Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
(c) Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (i) is notified promptly after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 9.4(iv), Hyland shall remove the infringing portion of the Work Products and refund to Customer the services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Hyland to Customer; (iii) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (iv) Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS.
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 10.1 and 10.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Hyland will refund to Customer the portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY WORK PRODUCTS, INNOVATIONS, INFORMATION OR PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PROFESSIONAL SERVICES OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
11. TERMINATION.
11.1 Generally. Except as otherwise stated in an Incorporating Document, or otherwise agreed by the parties in writing, Customer or Hyland may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other Party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Hyland for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Hyland has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DAMAGES.
13. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
14. CONFIDENTIAL INFORMATION.
14.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not, to the knowledge of the recipient, bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
14.2 Each party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 14 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
14.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
15. NON-SOLICITATION; NO-HIRE. See Exhibit A attached hereto.
16. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit set forth below shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Australia Pty Ltd. Exhibit C
Hyland Software Brasil Ltda. Exhibit D
Hyland Colombia S.A.S. Exhibit E
Hyland France S.A.S. Exhibit F
Hyland Software Germany GmbH Exhibit G
Hyland Mexico S. de R.L. de C.V. Exhibit H
Hyland Software, Inc., if Customer is located in Peru Exhibit I
17. GENERAL TERMS.
17.1. Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 17.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 17.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
17.2. Governing Law; Jurisdiction. See Exhibit B attached hereto.
17.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by this Agreement.
17.4 Subcontracting. Hyland may subcontract all or any part of the Professional Services, provided, that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
17.5 Independent Contractor. The Parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
17.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
17.7 Integration. This Agreement, including any exhibit, schedule or agreement attached to this Agreement or referenced in this Agreement, sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from one Party to the other, are rejected and shall be null and void and of no force or effect unless included in a written amendment mutually signed by the Parties. To the extent there is a conflict between these Terms and Conditions and the Incorporating Document, the terms of these Terms and Conditions control.
17.8 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
17.10 Certified Channel Partner. To the extent that Customer is a certified channel partner of Hyland’s, the Incorporating Document has been entered into by Customer for the benefit of an end user (an “End User”), and such End User has not previously entered into a separate contract with Hyland that governs the Professional Services provided under the Incorporating Document, the terms of this Section shall apply.
Customer and Hyland acknowledge and agree that Hyland is providing Professional Services to Customer for the benefit of End User; therefore, Customer (a) represents and warrants that it has entered into a binding contract with End User with respect to the project, under the terms of which Customer is permitted to retain Hyland as a subcontractor to provide the Professional Services contemplated pursuant to this Agreement; (b) agrees that the license to Work Products in Section 9.2 shall be sublicensed by Customer to the End User, subject to the restrictions stated therein and that other than the right to sublicense the Work Products, the license to the Work Products does not extend to Customer; and (c) agrees that it shall cause End User to comply with the provisions of this Agreement that are binding upon Customer as if End User was a Party, including by facilitating End User’s cooperation as requested by Hyland to provide the Professional Services and causing End User to abide by the restrictions and limitations contained herein. Further, Customer agrees that it shall be responsible for compliance with this Agreement by End User and expressly agrees to indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including reasonable attorneys’ fees and court costs, suffered or incurred by Hyland arising from any breach by End User of any provisions of this Agreement.
17.11 Controlling Language. Hyland may make other versions of these Terms and Conditions available in other languages at this online location. This English language version of these Terms and Conditions controls over any version of the Terms and Conditions made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Terms and Conditions are not made available at this online location in the Other Language, this English language version controls over any other version of the Terms and Conditions that may be made available at this online location in another language.
Exhibit A
Non-Solicitation; No-Hire
Section 15 of the Agreement (Non-Solicitation; No-Hire) shall be the terms set forth on this Exhibit A, based upon the applicable Hyland company listed below:
“Restricted Individuals” means any person (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement; and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
During the term of this Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will (except to the extent either party receives the prior written consent of the other party):
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a Restricted Individual, or otherwise encourage or assist any such Restricted Individual to leave the employ of the other party for any reason, in each case at any time during such Restricted Individual’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is a Restricted Individual.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 15(a). The Parties agree that this provision survives the termination of the Agreement.
(d) Section 15(d) of the Agreement shall be the terms set forth below, based upon the applicable Hyland company listed below:
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following terms shall apply as Section 15 of the Agreement (Non-Solicitation; No-Hire):
During the term of this Agreement, Customer will not:
For any Hyland company not referenced in this Exhibit A, Section 15 (Non-Solicitation; No-Hire) shall not apply.
Exhibit B
Governing Law; Jurisdiction
Section 17.2 of the Agreement (Governing Law; Jurisdiction) shall be the terms set forth in this Exhibit B, based upon the applicable Hyland company listed below:
Exhibit C
Hyland Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., this Exhibit C shall apply:
Australian Consumer Law for Users in Australia. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
The warranties provided by Hyland in this Agreement are in addition to other rights and remedies of Customer under the Australian Consumer Law and nothing in this Agreement is intended to limit these rights and remedies which cannot be excluded under the Australian Consumer Law. The goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
If Customer believes that it has an alleged non-conformance of warranty claim, such claim needs to be made within the applicable sixty (60) day warranty period and should be made to the warranty provider, Hyland, as follows: (1) in writing to Hyland at the following address: Attn: Legal Department, Hyland Software, Inc. 28500 Clemens Road, Westlake, Ohio 44145 (USA); or (2) in writing via email to Hyland at australianconsumerlaw@hyland.com.
Customer will bear the expense of making a warranty claim under the terms set forth on this Exhibit C.
If the purchase of the goods by Customer does not fall under the Australian Consumer Law, this Exhibit C shall not apply and the warranty and disclaimer otherwise stated in this Agreement shall control.
Exhibit D
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA, this Exhibit D shall apply:
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S. this Exhibit F shall apply:
12.3 The Parties acknowledge that these limitations and exclusions of Hyland’s liability reflect the allocation of risk under the Agreement and the economical balance required by the Parties, that the Agreement would not have been entered into without these limitations and exclusions, and that these limitations and exclusions shall remain in effect even in the event of termination or rescission of the Agreement.
Exclusion of Unforeseeability: The Parties declare that they measure and accept the risks inherent to the performance of the Agreement. By express agreement, the Parties waive the application of the provisions of article 1195 of the French Civil code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2. Section 9.2 of the Agreement shall be replaced in its entirety as follows:
Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompiling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
10.1 Limited Warranty for Professional Services. Hyland will perform the Professional Services in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes (a) non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement; and (b) any Professional Services in the nature of staff augmentation.
10.2 Limited Warranty for Work Products. For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
10.3 Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Agreement with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of this Agreement.
10.4 Disclaimer of Warranties. Section 10.4 is restated herein and tThe following is added to Section 10.4: Statutory warranty rights of the Customer shall remain unaffected.
10.5 The following is added as an additional Section 10.5:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by this Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THIS AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
If Hyland is Hyland Mexico S. de R.L. de C.V., this Exhibit H shall apply:
For purposes of this Section 12.1, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
If Hyland is Hyland Software, Inc., but Hyland is providing services within the country of Peru, this Exhibit I shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section 12.1, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 3rd 2023 to October 19th 2023
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GESCHÄFTSBEDINGUNGEN FÜR PROFESSIONELLE DIENSTLEISTUNGEN
Ab dem Datum des Inkrafttretens des Vertragsdokuments sind diese Geschäftsbedingungen für Professionelle Dienstleistungen („Geschäftsbedingungen“) Teil des Vertragsdokuments (wie nachfolgend im Abschnitt 1 definiert).
„Arbeitsergebnisse“ bezeichnet alle Elemente in Form von Computersoftware, einschließlich Quellcode, Objektcode, Skripten und allen Komponenten oder Elementen des Vorstehenden oder Elemente, die mit den Konfigurationstools der Software erstellt wurden, sowie alle Konstruktionsdokumente im Zusammenhang mit Gegenständen in Form von Computersoftware, die jeweils von Hyland erstellt, entwickelt, entdeckt, konzipiert oder eingeführt werden und entweder allein oder in Verbindung mit anderen bei der Erbringung von Dienstleistungen im Rahmen dieser Vereinbarung funktionieren. Falls zutreffend, umfasst der Begriff „Arbeitsergebnisse“ vorkonfigurierte Vorlagen oder VBScripts, die von Hyland im Rahmen der Konfiguration des Vorauserfassungsmoduls der Software erstellt oder anderweitig bereitgestellt wurden.
„Arbeitsstunde“ bezeichnet die Dienste einer (1) Person für einen Zeitraum von einer (1) Stunde (oder eines Teils davon) während der regulären Geschäftszeiten.
„Bestrittene Beträge“ bezeichnet die Beträge auf einer Rechnung, für die der Kund Hyland vor dem Fälligkeitsdatum der Rechnung eine schriftliche Mitteilung zukommen lässt, in der sie ihre Einwände gegen die Zahlung dieser Beträge darlegt.
„Dokumentation“ bedeutet: (1) soweit verfügbar, die in der Software enthaltenen „Hilfedateien“ oder (2), falls in der Software keine solchen „Hilfedateien“ enthalten sind, eine andere von Hyland veröffentlichte Dokumentation, die sich auf die Funktions-, Betriebs- oder Leistungsmerkmale der Software bezieht.
"Hyland“ bedeutet die Hyland Gesellschaft, die Vertragspartei des Vertragsdokuments ist.
„Kunde“ bezeichnet das Unternehmen, welches das Vertragsdokument mit Hyland abgeschlossen hat. Falls es sich bei der Vertragspartei um einen zertifizierten Vertriebspartner von Hyland handelt, gilt Abschnitt 17.10 dieser Geschäftsbedingungen.
„Parteien“ bedeutet Hyland und Kunde gemeinsam (jeweils einzeln „Partei“)
„Professionelle Dienstleistungen“ bezeichnet alle Dienstleistungen, die von Hyland in Erfüllung eines Vertragsdokuments erbracht werden.
„Software“ bedeutet Hylands eigene Softwareprodukte oder Lösungen, für die der Kunde eine gültige Lizenz von Hyland oder einem autorisierten Vertriebspartner von Hyland erworben hat.
„Spezifikationen“ bezeichnet die endgültigen Funktionsspezifikationen für Arbeitsergebnisse, sofern vorhanden, die von Hyland im Rahmen eines Vertragsdokuments erstellt wurden. Spezifikationen gelten bei Arbeitsergebnissen als Dokumentation im Sinne dieser Vereinbarung.
„Verbotene Handlung“ bedeutet: (a) das Entfernen von Urheberrechts-, Marken- oder andere Schutzrechtshinweisen, die auf oder während der Verwendung der Software, der Arbeitsergebnisse oder der Dokumentation erscheinen; (b) der Verkauf, die Übertragung, die Vermietung, das Leasing oder die Unterlizenzierung der Software, der Arbeitsergebnisse oder der Dokumentation and Dritte; (c) sofern dies nicht ausdrücklich in Bezug auf Software oder Arbeitsergebnisse gestattet ist, die Abänderung oder die Modifikation der Software, der Arbeitsergebnisse oder der Dokumentation; (d) das Reverse-Engineering, das Disassemblieren, das Dekompilieren, der Versuch, den Quell-Code abzuleiten, oder Anfertigung von abgeleiteten Werken und zwar in Bezug auf die Software, die Arbeitsergebnisse oder die Dokumentation; oder (e) der Verstoß gegen die Bestimmungen der Abschnitte 9, 13 oder 14 dieser Geschäftsbedingungen.
„Vereinbarung“ bedeutet diese Geschäftsbedingungen gemeinsam mit dem Vertragsdokument.
„Vertragsdokument“ bezeichnet das Leistungsangebot, das Bestellformular oder eine andere zwischen dem Kunden und Hyland geschlossene Vereinbarung oder Dokument, in der/dem auf diese Geschäftsbedingungen für Professionelle Dienstleistungen verwiesen wird oder diese Geschäftsbedingungen verlinkt sind.
2. AUSFÜHRUNG. Hyland wird die in dieser Vereinbarung beschriebenen Professionellen Dienstleistungen wie in dieser Vereinbarung enthalten oder wie zu einem von den Parteien einvernehmlich und schriftlich gesondert festgelegten Zeitpunkt und Zeitplan ausführen. Wenn Verzögerungen bei der Ausführung solcher Professionellen Dienstleistungen ausschließlich auf falsche Informationen, falsche Annahmen oder Nichterfüllung der Verpflichtungen des Kunden im Zusammenhang mit dieser Vereinbarung zurückzuführen sind, kann der Terminplan für das betreffende Projekt verlängert werden. Hyland übernimmt keine Haftung oder Verantwortung für Kosten oder Aufwendungen, die sich aus solchen Verzögerungen ergeben. Für den Fall, dass die Erfüllung eines in dieser Vereinbarung festgelegten Meilensteins aufgrund einer Verzögerung, die ausschließlich von Hyland verursacht wurde, nicht erreicht wird und sofern dieser Grund kein Ereignis höherer Gewalt ist, stimmt Hyland zu, ohne zusätzliche Kosten für den Kunden, die zusätzlichen Ressourcen und das Personal bereitzustellen, welche erforderlich sind, um sicherzustellen, dass eine solche Verzögerung nicht zu Verzögerungen späterer Meilensteine oder des Abschlusses der Professionellen Dienstleistungen führt. Die Parteien vereinbaren, dass alle in dem Vertragsdokument genannten Professionellen Dienstleistungen oder Arbeitsergebnisse, die vor der Unterschrift dieser Vereinbarung durch die Parteien ganz oder teilweise erbracht oder entwickelt wurden, dennoch allen Bestimmungen und Bedingungen dieser Vereinbarung unterfallen.
3. ÄNDERUNGEN DES VERTRAGSDOKUMENTS. Jede Partei ist jederzeit berechtigt, eine angemessene Änderung eines Vertragsdokuments zu beantragen. Jede angeforderte Änderung, die die Parteien gegenseitig akzeptieren (eine „Änderung“), wird in einem schriftlichen Änderungsauftrag aufgeführt, der von Hyland erstellt und von beiden Parteien vereinbart und unterzeichnet wird, wobei ausdrücklich auf das entsprechende Vertragsdokument verwiesen wird. Falls sich die Parteien nicht auf eine vorgeschlagene Änderung oder einen vorgeschlagenen Änderungsauftrag einigen können und sich diese vorgeschlagene Änderung auf eine wesentliche Komponente des Projekts bezieht, die Gegenstand des entsprechenden Vertragsdokuments ist, kann jede Partei diese Vereinbarung mit einer Frist von mindestens dreißig (30) Tagen im Voraus durch schriftliche Mitteilung an die andere Partei kündigen.
4. VERPFLICHTUNGEN DES KUNDEN.
4.1 Unterstützung und Verpflichtungen. Der Kunde erklärt sich damit einverstanden, mit Hyland bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung zusammenzuarbeiten und Hyland zu unterstützen, die in dieser Vereinbarung angegebenen Ressourcen bereitzustellen und alle Verpflichtungen zu erfüllen, die der Kunde gemäß den Bestimmungen dieser Vereinbarung erfüllen muss. Während eines Zeitraums, in dem Hyland Professionelle Dienstleistungen im Rahmen dieser Vereinbarung erbringt, muss der Kunde dem Hyland-Projektteam einen unabhängigen lokalen (vor Ort) und Remote-Zugriff (außerhalb des Standorts) gewähren und zwar über sichere Verbindungen, wie etwa eine Netzwerkverbindung, eine VPN-Verbindung oder andere ähnliche Methoden, sowie spezieller Benutzerkonten mit entsprechenden Berechtigungen für die entsprechende Software, Hardware oder virtueller Maschinen, die dem entsprechenden Softwaresystem zugeordnet sind. Remote- und lokaler Zugriff wird für alle bereitgestellten Umgebungen, einschließlich der Produktionsumgebung, gewährt. Der Kunde nimmt zur Kenntnis, dass die Fähigkeit von Hyland, die Professionellen Dienstleistungen zu erbringen, den festgelegten Leistungsplan einzuhalten und die Dienstleistungsgebühren in angemessener Weise mit den in dieser Vereinbarung angegebenen Schätzungen in Übereinstimmung zu bringen, beeinträchtigt werden kann, wenn der Kunde es versäumt, Unterstützung zu leisten und seine Verpflichtungen aus dieser Vereinbarung zu erfüllen.
4.2 Drittsoftware Nutzungsrechte. Ungeachtet gegenteiliger Bestimmungen und sofern der Kunde Hyland auffordert, Professionelle Dienstleistungen für oder in Bezug auf Software von Drittanbietern zu erbringen, sichert der Kunde gegenüber Hyland zu, dass er alle erforderlichen Nutzungsrechte an Drittsoftware hat, um dies Hyland zu ermöglichen.
4.3 Schutz der Kundensysteme. Sofern es sich nicht um eine von Hyland gehostete Lösung handelt, erklärt sich der Kunde damit einverstanden, dass er allein dafür verantwortlich ist, geeignete Maßnahmen zu ergreifen, um seine Computersysteme zu isolieren und zu sichern oder anderweitig zu archivieren, einschließlich seiner Computer Programme, Daten und Dateien.
4.4 Sichere Arbeitsumgebung. Der Kunde ist dafür verantwortlich und stellt sicher, dass alle angemessenen und rechtlichen Gesundheits- und Sicherheitsvorkehrungen getroffen wurden und voll funktionsfähig sind, um Hyland-Mitarbeiter, Vertreter oder Subunternehmer während des Aufenthalts beim Kunden zu schützen.
5. DIENSTLEISTUNGSGEBÜHREN. Sofern in dem jeweiligen Vertragsdokument nicht anderweitig vereinbart: (a) berechnet Hyland dem Kunden Dienstleistungsgebühren für Professionelle Dienstleistungen zum jeweils aktuellen Standard-Listenpreis von Hyland für die entsprechenden Professionellen Dienstleistungen und (b) stellt Hyland dem Kunden monatlich nachträglich Gebühren für Professionelle Dienstleistungen in Rechnung, basierend auf der Anzahl der für die Fertigstellung des Projekts erforderlichen Arbeitsstunden und den geltenden Stundengebühren. Der Kunde ist verpflichtet, alle Rechnungsbeträge (mit Ausnahme von Bestrittenen Beträgen) innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen. Alle Schätzungen der Gebühren oder Arbeitsstunden, die für die Fertigstellung des Projekts erforderlich sind, sind ungefähre Angaben zu der voraussichtlichen Höhe der Gebühren und der Zeit, die für die Fertigstellung des Projekts erforderlich sind. Die tatsächliche Anzahl der Arbeitsstunden kann variieren.
6. REISEKOSTEN UND SPESEN. Alle üblichen und angemessenen Auslagen und Kosten, die Hyland im Zusammenhang mit der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung entstehen (einschließlich Gebühren und Kosten für Reisen, Mahlzeiten, Unterkunft und Registrierungsanforderungen für Drittanbieter) gemäß den geltenden internen Richtlinien von Hyland für die Erstattung von Kosten und Aufwendungen an seine Mitarbeiter, sind Hyland gegenüber zu erstatten. Sofern in einem entsprechenden Vertragsdokument nichts anderes vereinbart ist, stellt Hyland dem Kunden alle erstattungsfähigen Kosten und Aufwendungen monatlich nachträglich in Rechnung und der Kunde hat die Rechnung innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen.
8. STEUERN UND STAATLICHE ABGABEN.Alle Zahlungen im Rahmen dieser Vereinbarung verstehen sich exklusive aller anfallenden Steuern und staatlichen Abgaben (z. B. Zölle), die alle vom Kunden zu zahlen sind (mit Ausnahme der Steuern auf das Einkommen von Hyland). Für den Fall, dass der Kunde gesetzlich verpflichtet ist, Steuern einzubehalten, verpflichtet sich der Kunde, Hyland alle erforderlichen Belege und Unterlagen vorzulegen, die eine solche Zahlung belegen. Falls Hyland gesetzlich verpflichtet ist, Steuern oder staatliche Abgaben im Namen oder auf Rechnung des Kunden abzuführen, verpflichtet sich der Kunde, Hyland innerhalb von dreißig (30) Tagen nach Erhalt einer entsprechenden schriftlichen Benachrichtigung entsprechend zu entschädigen. Der Kunde erklärt sich damit einverstanden, Hyland vor jeder Überweisung, die Hyland im Namen oder auf Rechnung des Kunden vornehmen muss, gültige Steuerbefreiungsbescheinigungen vorzulegen, sofern diese Bescheinigungen erforderlich sind.
9. ARBEITSERGEBNISSE.
9.2 Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
9.3 Änderung von Arbeitsergebnissen.
(a) Form der gelieferten Arbeitsprodukte. Die Form, in der Hyland Arbeitsergebnisse liefert, wird von Hyland in Abhängigkeit vom Zweck und der Funktionalität des Arbeitsergebnisses festgelegt.
(b) Konfigurierte Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert: (a) in Form von (i) Quellcode, der von Tools in der Software in Maschinensprache kompiliert wird; oder (ii) einem Skript; oder (b) welches unter Verwendung der Konfigurations-Tools in der Software erstellt wird (ein „Konfiguriertes Arbeitsergebnis“), gewährt Hyland dem Kunden das beschränkte Recht, das Konfigurierte Arbeitsergebnis zu modifizieren, vorausgesetzt, ein solches modifiziertes Konfiguriertes Arbeitsergebnis wird nur in Übereinstimmung mit den Bedingungen der beschränkten Lizenz für ein solches Arbeitsergebnis verwendet, die gemäß diesem Abschnitt gewährt wird.
(c) Unabhängige Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert, bei dem es sich nicht um ein Konfiguriertes Arbeitsergebnis handelt (ein „Unabhängiges Arbeitsergebnis“), darf der Kunde dieses Unabhängige Arbeitsergebnis nicht verändern oder modifizieren, es sei denn, der letzte Satz dieses Abschnittes sieht etwas anderes vor. Wenn Hyland ein Unabhängiges Arbeitsergebnis liefert und der Kunde das Recht zur Modifizierung des Unabhängigen Arbeitsergebnisses erhalten möchte, können die Parteien einvernehmlich vereinbaren, dass Hyland dem Kunden eine Kopie des Formats des Unabhängigen Arbeitsergebnisses liefert, das zur Modifizierung des Unabhängigen Arbeitsergebnisses erforderlich ist, vorbehaltlich und nach Zahlung der zusätzlichen Dienstleistungsgebühren durch den Kunden an Hyland, die Hyland möglicherweise für die Erstellung und Lieferung eines solchen Formats berechnen kann. In diesem Fall gewährt Hyland dem Kunden das Recht, das gelieferte Format des Unabhängigen Arbeitsergebnisses zu modifizieren und gegebenenfalls zu kompilieren, vorausgesetzt, dass das modifizierte Unabhängige Arbeitsergebnis nur in Übereinstimmung mit den Bedingungen der gemäß diesem Abschnitt gewährten beschränkten Lizenz für dieses gewährte Arbeitsergebnis verwendet wird.
9.4 Entschädigung für die Verletzungen gewerblicher Schutzrechte durch Arbeitsergebnisse. Hyland erklärt sich damit einverstanden, den Kunden von jeglicher Haftung und allen Kosten, einschließlich angemessener Anwaltskosten, freizustellen, die sich aus oder im Zusammenhang mit Ansprüchen, Handlungen oder Verfahren Dritter ergeben, die gegen den Kunden aufgrund einer Verletzung oder widerrechtlichen Aneignung eines Patents, eines eingetragenen Urheberrechts oder einer eingetragenen Marke eines Dritten, durch die Arbeitsergebnisse erhoben werden, vorausgesetzt, dass Hyland: (i) sofort benachrichtigt wird, nachdem der Kunde über einen solchen Anspruch informiert wurde; (ii) die alleinige Verantwortung für die Verteidigung und etwaige Vergleichsverhandlungen in Bezug auf einen solchen Anspruch trägt (vorausgesetzt, dass Hyland einen solchen Anspruch nicht ohne die vorherige schriftliche Zustimmung des Kunden vergleicht, wenn ein solcher Vergleich eine Vereinbarung oder ein Eingeständnis oder eine Anerkennung einer Haftung oder eines Fehlverhaltens seitens des Kunden enthält oder anderweitig eine Zahlung durch den Kunden erfordert); (ii) die angemessene Kooperation des Kunden bei der Verteidigung oder Beilegung eines solchen Anspruchs erhält; und (iv) das Recht hat, beim Eintreten oder bei der Wahrscheinlichkeit (nach Ansicht von Hyland) eines Verstoßes oder einer widerrechtlichen Aneignung entweder dem Kunden das Recht zur weiteren Nutzung der Arbeitsergebnisse zu verschaffen, oder die betreffenden Teile der Arbeitsergebnisse durch andere gleichwertige, nicht rechtsverletzende Teile zu ersetzen.
10. BESCHRÄNKTE GEWÄHRLEISTUNG FÜR DIENSTLEISTUNGEN UND ARBEITSERGEBNISSE
10.1 Beschränkte Gewährleistungen für Professionelle Dienstleistungen. Für einen Zeitraum von sechzig (60) Tagen ab dem Datum des Abschlusses der Professionellen Dienstleistungen gewährleistet Hyland gegenüber dem Kunden, dass diese Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus, die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von sechzig (60) Tagen ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnis, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
10.3 Abhilfe. Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß der Abschnitte 10.1 und 10.2 lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Frist von sechsig (60) Tagen schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder angemessene Anstrengungen unternehmen, um die nicht konformen Professionellen Dienstleistungen erneut auszuführen und versuchen, die fehlerhaften Professionellen Dienstleistungen zu korrigieren. Im Falle der Nichtkonformität eines Arbeitsproduktes wird Hyland das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann.
Sofern Hyland feststellt, dass eine Behebung der Nichtkonformität nach angemessener Zeit nicht möglich ist oder dass Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, besteht das einzige Recht des Kunden in Kündigung dieser Vereinbarung. In diesem Fall erstattet Hyland dem Kunden den Teil der vor der Kündigung in Bezug auf die Erstellung und Implementierung eines solchen nichtkonformen Arbeitsergebnisses oder der nichtkonformen Professionellen Dienstleistungen bezahlten Dienstleistungsgebühren.
10.4 Gewährleistungsausschluss. MIT AUSNAHME DER VORSTEHENDEN AUSDRÜCKLICHEN BESTIMMUNGEN GEBEN HYLAND UND SEINE LIEFERANTEN KEINE GARANTIEN, ZUSICHERUNGEN ODER GEWÄHRLEISTUNGEN IN BEZUG AUF ARBEITSERGEBNISSE, INNOVATIONEN, INFORMATIONEN ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN. HYLAND UND SEINE LIEFERANTEN LEHNEN ALLE ANDEREN AUSDRÜCKLICHEN, STILLSCHWEIGENDEN UND GESETZLICHEN GARANTIEN ODER GEWÄHRLEISTUNGEN AB UND SCHLIESSEN DIESE AUS, EINSCHLIESSLICH, ABER NICHT BESCHRÄNKT AUF GARANTIEN/GEWÄHRLEISTUNGEN GEGEN RECHTSVERLETZUNGEN, DIE STILLSCHWEIGENDE GARANTIE/GEWÄHRLEISTUNGEN DER MARKTGÄNGIGKEIT UND DER EIGNUNG FÜR EINEN BESTIMMTEN ZWECK SOWIE GARANTIEN/GEWÄHRLEISTUNG, DIE SICH AUS DEM VERLAUF DER LEISTUNG, DEM HANDELSBRAUCH ODER DER HANDELSGEWOHNHEIT ERGEBEN ODER ALS SOLCHE ANGESEHEN WERDEN KÖNNEN. HYLAND UND SEINE LIEFERANTEN GARANTIEREN UND GEWÄHRLEISTEN NICHT, DASS DIE ERBRACHTEN PROFESSIONELLEN DIENSTLEISTUNGEN ODER ARBEITSERGEBNISSE DEN ANFORDERUNGEN DES KUNDEN ENTSPRECHEN ODER FEHLERFREI SIND ODER DASS DER BETRIEB DER SOFTWARE ODER DER ARBEITSERGEBNISSE, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN, NICHT UNTERBROCHEN WIRD. SOFERN NICHT AUSDRÜCKLICH IN DIESER VEREINBARUNG ANGEGEBEN, ÜBERNIMMT HYLAND KEINERLEI HAFTUNG IN BEZUG AUF HARDWARE, FIRMWARE, SOFTWARE ODER DIENSTLEISTUNGEN VON DRITTEN.
11. KÜNDIGUNG.
11.1 Allgemein. Sofern nicht im Vertragsdokument oder anderweitig zwischen den Parteien schriftlich vereinbart, können der Kunde oder Hyland diese Vereinbarung aus beliebigen Gründen mit einer Frist von mindestens dreißig (30) Tagen schriftlich kündigen.
11.2 Kündigung durch eine der Parteien. Jede Partei kann diese Vereinbarung mit sofortiger Wirkung nach schriftlicher Mitteilung an die jeweils andere Partei in ihrer Gesamtheit kündigen, wenn die jeweils andere Partei gegen eine wesentliche Bestimmung diese Vereinbarung verstoßen hat und den Verstoß nicht innerhalb von dreißig (30) Tagen nach Erhalt der schriftlichen Mitteilung des Verstoßes durch die nicht verletzende Partei behoben hat; vorausgesetzt, dass Hyland nicht verpflichtet ist, dem Kunden die Möglichkeit zu geben, einen Verstoß im Falle einer Verbotenen Handlung zu beheben, die für alle Zwecke als wesentliche Bestimmungen dieser Vereinbarung betrachtet werden.
11.3 Kündigung dieser Vereinbarung. Im Falle jeder Kündigung dieser Vereinbarung ist der Kunde verpflichtet, alle Dienstleistungsgebühren, die sich auf von Hyland vor Wirksamkeit der Kündigung erbrachten Professionellen Dienstleistungen beziehen zu entrichten. Dies gilt nicht, sofern Hyland gegen eine Verpflichtung zur Erbringung von Professionellen Dienstleistung verstoßen hat und dieser Verstoß den Kündigungsgrund darstellt.
11.4 Auswirkungen der Kündigung. Bei jeder Beendigung dieser Vereinbarung (außer durch Hyland aufgrund eines Verstoßes des Kunden) bleibt die Lizenz des Kunden zur Nutzung der in dieser Vereinbarung enthaltenen Arbeitsergebnisse gemäß ihren Bedingungen bestehen.
12. HAFTUNGSBESCHRÄNKUNG.
12.1 WEDER DIE PARTEIEN NOCH IHRE VERBUNDENEN UNTERNEHMEN (UND IM FALLE VON HYLAND HYLAND’S LIEFERANTEN) SIND HAFTBAR, SEI ES AUFGRUND EINES VERTRAGS, EINER UNERLAUBTEN HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER EINES ANDEREN RECHTLICHEN GRUNDES FÜR INDIREKTE, ZUFÄLLIGE, BESONDERE ODER FOLGESCHÄDEN ODER FÜR ENTGANGENE EINNAHMEN, REPUTATION, EINSPARUNGEN ODER GEWINNE (MIT AUSNAHME DER IM RAHMEN DIESER VEREINBARUNG FÄLLIGEN GEBÜHREN), VERLUST ODER BESCHÄDIGUNG VON DATEN ODER PROGRAMMEN, KOSTEN FÜR ERSATZ ODER DIE BEHEBUNG VON SCHÄDEN ODER GESCHÄFTSUNTERBRECHUNGEN, SELBST WENN SIE AUF DIE MÖGLICHKEIT SOLCHER SCHÄDEN, VERLUSTE, AUSGABEN ODER KOSTEN HINGEWIESEN WURDEN.
12.2 DIE GESAMTE, KUMULATIVE HAFTUNG VON HYLAND (EINSCHLIESSLICH VERBUNDENEN UNTERNEHMEN UND LIEFERANTEN), DIE SICH AUS DIESER VEREINBARUNG ERGIBT, SEI ES AUS VERTRAG ODER UNERLAUBTER HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER AUS EINES ANDEREN RECHTLICHEN GRUNDES, ÜBERSTEIGT IN KEINEM FALL DEN GESAMTBETRAG, DEN DER KUNDE AN HYLAND FÜR DIE ERBRINGUNG DER DIENSTLEISTUNGEN, DIE DEN ANSPRUCH BEGRÜNDEN, INNERHALB DES ZWÖLF (12) MONATSZEITRAUMS, DER DEM ERSTEN ANSPRUCH BEGRÜNDENDEN EREIGNIS UNMITTELBAR VORAUSGEHT, TATSÄCHLICH GEZAHLT HAT (ABZÜGLICH ETWAIGER RÜCKERSTATTUNGEN ODER GUTSCHRIFTEN). IN BEZUG AUF PRODUKTE ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE DEM KUNDEN KOSTENLOS ZUR VERFÜGUNG GESTELLT WURDEN (WIE Z.B. EVALUIERUNGSSOFTWARE ODER -DIENSTLEISTUNGEN), HAFTEN WEDER HYLAND NOCH SEINE VERBUNDENEN UNTERNEHMEN ODER LIEFERANTEN FÜR SCHÄDEN.
13. EXPORT. Alle im Rahmen dieser Vereinbarung bereitgestellte Software, Arbeitsergebnisse oder Dokumentation, unterliegen den Exportkontrollgesetzen und -bestimmungen der Vereinigten Staaten und anderer Rechtsordnungen. Der Kunde verpflichtet sich, alle relevanten Exportkontrollgesetze und -bestimmungen, einschließlich der Bestimmungen des US-Handelsministeriums und aller US-Exportkontrollgesetze, einschließlich, aber nicht beschränkt auf die Exportverwaltungsbestimmungen des US-Handelsministeriums (EAR), vollständig einzuhalten, um sicherzustellen, dass die Software, die Arbeitsergebnisse oder die Dokumentation nicht unter Verstoß gegen die Gesetze der Vereinigten Staaten von Amerika oder die Gesetze und Vorschriften anderer Rechtsordnungen exportiert werden. Der Kunde verpflichtet sich, die Software, die Arbeitsergebnisse oder die Dokumentation nicht an Organisationen oder Staatsangehörige in den mit einem Embargo der Vereinigten Staaten belegten Gebieten wie Kuba, Iran, Nordkorea, Sudan, Syrien oder einem anderen Gebiet oder einer anderen Nation, für die das US-Handelsministerium, das US-Außenministerium, das US-Finanzministerium, die EU und/oder etwaige weitere Nationen ein Sanktionsprogramm für kommerzielle Aktivitäten unterhält, zu exportieren oder zu re-exportieren. Der Kunde darf die Software, die Arbeitsergebnisse oder die Dokumentation nicht für, gemäß den geltenden Gesetzen und Vorschriften der USA und anderer Gerichtsbarkeiten, verbotene Endanwendungen verwenden, einschließlich, aber nicht beschränkt auf Anwendungen im Zusammenhang mit nuklearer, chemischer oder biologischer Kriegsführung, Raketentechnologie (einschließlich unbemannter Luftfahrzeuge), militärischen Anwendungen oder nach den US Export Administration Regulations (EAR) oder anderen einschlägigen Gesetzen, Regeln oder Vorschriften der Vereinigten Staaten von Amerika und anderer Rechtsordnungen verbotenen oder eingeschränkten Verwendungen.
14. VERTRAULICHE INFORMATIONEN.
14.1 „Vertrauliche Informationen“ sind alle Informationen, die mit "proprietär" oder "vertraulich" gekennzeichnet sind, von denen die empfangende Partei weiß, dass sie vertraulich sind, oder die so beschaffen sind, dass sie üblicherweise zwischen Geschäftspartnern vertraulich sind, es sei denn, es gelten die Bestimmungen des nächsten Satzes. Zu den Vertraulichen Informationen gehören nicht Informationen: (a) die der Öffentlichkeit allgemein bekannt sind oder werden, ohne dass die empfangende Partei gegen diese Vereinbarung verstoßen hat, (b) in Bezug auf die die empfangende Partei nachweist, dass sie sich vor ihrer Offenlegung durch die offenlegende Partei im Besitz der empfangenden Partei befanden, (c) die die empfangende Partei von einem Dritten erhält, der gegenüber der offenlegenden Partei nicht durch Beschränkungen, Verpflichtungen oder Geheimhaltungspflichten gebunden ist, oder (d) in Bezug auf die die empfangende Partei nachweist, dass sie sie unabhängig und ohne Bezugnahme auf die Informationen der jeweils anderen Partei entwickelt hat.
14.3 Die Parteien erkennen an, dass ein Rechtsbehelf bei einem Verstoß gegen die Bestimmungen dieser Vereinbarung in Bezug auf Vertrauliche Informationen und Rechte an geistigem Eigentum nicht ausreicht, um die geschädigte Partei zu schützen, und dass die geschädigte Partei dementsprechend das Recht hat, zusätzlich zu allen anderen ihr zur Verfügung stehenden Rechtsbehelfen und Rechtsmitteln eine bestimmte Leistung oder einen Unterlassungsanspruch zu verlangen, um die Bestimmungen dieser Vereinbarung durchzusetzen.
15. ABWERBEVERBOT. EINSTELLUNGSVERBOT. Siehe Anlage A zu dieser Vereinbarung.
16. ZUSATZBESTIMMUNGEN. Wenn es sich bei Hyland um ein unten aufgeführtes Hyland-Unternehmen handelt, gelten die zusätzlichen oder alternativen Bedingungen, die in der unten aufgeführten Anlage – Zusatzbestimmungen aufgeführt sind:
Hyland-Unternehmen Zusatzbestimmungen
Hyland Software Germany GmbH Anlage C
17. ALLGEMEINE BESTIMMUNGEN
17.1 Höhere Gewalt. Ein Versäumnis, eine Verzögerung oder die Nichterfüllung einer Verpflichtung durch eine Partei (mit Ausnahme der Zahlung von Geldern) stellt keine Nichterfüllung oder Verletzung dar, soweit ein solches Versäumnis, eine solche Verspätung oder eine solche Nichterfüllung auf eine bestehende oder zukünftige Ursache zurückzuführen ist, die außerhalb der Kontrolle (einschließlich, aber nicht beschränkt auf: Maßnahmen oder Untätigkeit von Regierungs-, Zivil- oder Militärbehörden; Feuer; Streik, Aussperrung oder andere Arbeitskämpfe; Flut; Krieg; Aufruhr; Diebstahl; Erdbeben; Naturkatastrophe oder höhere Gewalt; Pandemien, Epidemien, nationale Notfälle, Nichtverfügbarkeit von Materialien oder Versorgungsunternehmen, Sabotage, Viren oder die Handlung, Fahrlässigkeit oder Versäumnis der anderen Partei) und außerhalb von Fahrlässigkeit oder vorsätzlichem Fehlverhalten der Partei liegt, der die Verzögerung oder Nichterfüllung sonst zur Last gelegt würde. Jede Partei, die sich auf eine der vorstehenden Ausführungen als Entschuldigung für die Nichterfüllung, den Verzug oder die verspätete Erfüllung berufen möchte, muss die andere Partei, sobald der Grund vorliegt, unverzüglich schriftlich über die Tatsachen informieren, die einen solchen Grund darstellen und wenn die Ursache nicht mehr besteht, dies der anderen Partei unverzüglich mitzuteilen. Dieser Abschnitt 17.1 schränkt in keiner Weise das Recht einer Partei ein, Ansprüche gegen Dritte wegen Schäden geltend zu machen, die aus diesen Gründen entstanden sind. Wenn ein Leistungstermin einer Partei im Rahmen dieser Vereinbarung gemäß diesem Abschnitt 17.1 um mehr als neunzig (90) Kalendertage verschoben oder verlängert wird, kann die andere Partei durch schriftliche Mitteilung während der Verschiebung oder Verlängerung und mindestens dreißig (30) Tage vor dem Datum des Inkrafttretens der Kündigung diese Vereinbarung kündigen.
17.2 Anwendbares Recht und Gerichtsstand. Siehe Anlage B zu dieser Vereinbarung.
17.3 Bindungswirkung; Abtretung. Diese Vereinbarung ist für die Parteien und ihre jeweiligen Rechtsnachfolger und zugelassenen Abtretungsempfänger bindend und kommt diesen zugute. Keine Partei darf diese Vereinbarung oder ihre Rechte oder Pflichten aus dieser Vereinbarung ganz oder teilweise an eine andere natürliche oder juristische Person ohne vorherige schriftliche Zustimmung der anderen Partei abtreten, übertragen oder unterlizenzieren, immer vorausgesetzt, dass eine solche Zustimmung nicht unbillig verweigert werden darf, wenn eine Partei diese Vereinbarung in ihrer Gesamtheit an den überlebenden Rechtsträger einer Fusion oder Konsolidierung oder an einen Käufer von im Wesentlichen allen Vermögenswerten dieser Partei überträgt, der alle Verpflichtungen dieser Partei aus dieser Vereinbarung schriftlich übernimmt. Jede Abtretung, die ohne Einhaltung der Bestimmungen dieses Abschnitts erfolgt, ist nichtig. Ungeachtet gegenteiliger Bestimmungen kann Hyland diese Vereinbarung ohne Zustimmung der anderen Partei durch schriftliche Mitteilung an die andere Partei an ein mit Hyland verbundenes Unternehmen abtreten. Der Kunde erkennt an, dass Hyland ein mit Hyland verbundenes Unternehmen und / oder eines seiner verbundenen Unternehmen die mit der Erfüllung der in dieser Vereinbarung vorgesehenen Verpflichtungen von Hyland beauftragen oder diese Verpflichtungen an ein solches verbundenes Unternehmen übertragen kann.
17.4 Vergabe von Unteraufträgen. Hyland kann alle oder einen Teil der Professionellen Dienstleistungen an Subunternehmer vergeben, vorausgesetzt Hyland bleibt gegenüber dem Kunden für die Erbringung von Dienstleistungen an Subunternehmer verantwortlich.
17.5 Unabhängige Vertragspartner. Die Parteien erkennen an, dass Hyland ein unabhängiger Auftragnehmer ist und dass Hyland für seine Verpflichtungen als Arbeitgeber für die Personen, die Professionelle Dienstleistungen erbringen, verantwortlich ist.
17.6 Dritte. Keine der hierin ausdrücklich oder stillschweigend enthaltenen Regelungen, ist dazu bestimmt oder so auszulegen, dass damit anderen natürlichen oder juristischen Person als den Parteien aufgrund dieser Vereinbarung Rechte oder Rechtsmittel übertragen oder gewährt werden. Drittanbieter von mit der Software gebündelten Softwareprodukten Drittbegünstigte im Hinblick auf diese Vereinbarung, soweit sie sich auf deren Softwareprodukte bezieht.
17.7 Integration. Diese Vereinbarung (einschließlich aller Anlagen oder Anhänge, die vorhanden sind oder auf die Bezug genommen wird) stellt die gesamte Vereinbarung zwischen den Parteien in Bezug auf den Gegenstand dieser Vereinbarung dar. Diese Vereinbarung tritt an die Stelle aller früheren Vereinbarungen, Verhandlungen und Gespräche zwischen den Parteien über denselben Gegenstand. Alle anderen Bedingungen, die von den Bedingungen dieser Vereinbarung abweichen oder sie ergänzen, unabhängig davon, ob sie in einer Bestellung oder einer anderen elektronischen, schriftlichen oder mündlichen Mitteilung einer Partei an die andere enthalten sind, werden zurückgewiesen und sind null und nichtig und ohne Kraft oder Wirkung, es sei denn, sie sind in einer schriftlichen Änderungsvereinbarung enthalten, die von den Parteien gegenseitig unterzeichnet wurde. Im Falle eines Widerspruchs zwischen diesen Geschäftsbedingungen und dem Vertragsdokument gehen die Bedingungen dieser Geschäftsbedingungen vor.
17.8 Salvatorische Klausel. Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig erklärt wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall wird die betroffene Bestimmung durch eine Bestimmung ersetzt, durch die die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung innerhalb der Grenzen des geltenden Rechts bzw. maßgeblicher Gerichtsentscheidungen bestmöglich erreicht werden.
17.9 Unternehmensrichtlinien. Hyland erkennt an, dass der Kunde Unternehmensrichtlinien unterhält, die für Personen gelten, die Dienstleistungen in den Räumlichkeiten oder im System des Kunden erbringen (zusammenfassend als "Unternehmensrichtlinien" bezeichnet). Bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung wird sich Hyland in angemessener Weise bemühen, die Unternehmensrichtlinien einzuhalten, soweit diese Unternehmensrichtlinien auf die Erbringung solcher Professionellen Dienstleistungen anwendbar sind, nicht im Widerspruch zur Vereinbarung oder einem anderen zwischen Hyland und dem Kunden bestehenden Vertrag stehen und Hyland rechtzeitig vor der Beauftragung der Professionellen Dienstleistungen zur Verfügung gestellt wurden. Ungeachtet gegenteiliger Bestimmungen in den Unternehmensrichtlinien erkennt der Kunde an und erklärt sich damit einverstanden, dass Hyland nicht vertragsbrüchig oder anderweitig verantwortlich sein wird, wenn eine Hyland-Ressource die Unternehmensrichtlinien nicht einhält und ein solches Versäumnis nicht anderweitig eine Verletzung dieser Vereinbarung darstellt, und dass der Kunde als einziges Rechtsmittel die einzelne(n) Ressource(n), die für das Versäumnis verantwortlich ist/sind, sofort aus seinen Räumlichkeiten entfernen und verlangen kann, dass diese einzelne(n) Ressource(n) keine weiteren Professionellen Dienstleistungen für den Kunden erbringen.
17.10 Zertifizierter Vertriebspartner. Sofern der Kunde ein zertifizierter Vertriebspartner von Hyland ist, das Vertragsdokument vom Kunden zugunsten eines Endbenutzers (ein "Endbenutzer") abgeschlossen wurde und dieser Endbenutzer nicht zuvor einen separaten Vertrag mit Hyland abgeschlossen hat, der die im Rahmen Vertragsdokument erbrachten Professionellen Dienstleistungen regelt, gelten die Bestimmungen dieses Abschnitts.
Der Kunde und Hyland erkennen an und vereinbaren, dass Hyland die Professionellen Dienstleistungen für den Kunden für die Verwendung durch den Endbenutzer erbringt; daher (a) sichert der Kunde zu und gewährleistet, dass er einen verbindlichen Vertrag mit dem Endbenutzer in Bezug auf das Projekt abgeschlossen hat, gemäß dessen Bedingungen der Kunde Hyland als Unterauftragnehmer mit der Erbringung der Professionellen Dienstleistungen gemäß dieser Vereinbarung beauftragen darf; (b) stimmt der Kunde zu, dass die Lizenz für die Arbeitsergebnisse gemäß Abschnitt 9.2 vom Kunden an den Endnutzer unter den dort genannten Einschränkungen unterlizenziert wird und dass sich die Lizenz für die Arbeitsergebnisse mit Ausnahme des Rechts zur Unterlizenzierung nicht auf den Kunden erstreckt; und (c) stimmt der Kunde zu, dass er den Endnutzer dazu veranlasst, die Bestimmungen dieser Vereinbarung einzuhalten, die für den Kunden verbindlich sind, als wäre der Endnutzer eine Vertragspartei, einschließlich der Unterstützung von Hyland in Bezug auf geforderte Zusammenarbeit des Endnutzers bei der Erbringung der Professionellen Dienstleistungen und der Veranlassung des Endnutzers, sich an die hierin enthaltenen Beschränkungen und Einschränkungen zu halten. Des Weiteren erklärt sich der Kunde damit einverstanden, dass er für die Einhaltung dieser Vereinbarung durch den Endnutzer verantwortlich ist und erklärt sich ausdrücklich damit einverstanden, Hyland von allen Ansprüchen, Verbindlichkeiten, Verlusten, Schäden und Kosten, einschließlich angemessener Anwalts- und Gerichtskosten, freizustellen, die Hyland aufgrund eines Verstoßes des Endnutzers gegen die Bestimmungen dieser Vereinbarung erleidet.
17.11 Sprache. Hyland kann andere Versionen dieser Geschäftsbedingungen in anderen Sprachen an diesem Online-Standort zur Verfügung stellen. Diese englischsprachige Version dieser Geschäftsbedingungen hat Vorrang vor jeder Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird, wenn das Vertragsdokument in Englisch ist. Wenn das Vertragsdokument in einer anderen Sprache als Englisch verfasst ist (eine solche Sprache wird als "andere Sprache" bezeichnet), diese Geschäftsbedingungen aber nicht in dieser anderen Sprache an diesem Online-Standort zur Verfügung gestellt werden, hat diese englische Version Vorrang vor jeder anderen Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird.
Anlage A
Abwerbeverbot. Einstellungsverbot
Abschnitt 15 der Vereinbarung (Abwerbeverbot; Einstellungsverbot) entspricht den in dieser Anlage A aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
„ Betroffene Personen“ sind alle Personen, (i) mit denen die einstellende Partei Kontakt hatte oder die der einstellenden Partei im Zusammenhang mit der Vereinbarung bekannt wurden, und (ii) die Mitarbeiter der anderen Partei sind oder waren, jeweils zu einem beliebigen Zeitpunkt während des Beschäftigungsverhältnisses dieser Person bei der anderen Partei oder innerhalb eines Jahres (1), nachdem diese Person aufgehört hat, Mitarbeiter der jeweils anderen Partei zu sein.
Während der Laufzeit dieser Vereinbarung und bis zu einem (1) Jahr nach Ablauf oder Beendigung der Vereinbarung werden weder der Kunde noch Hyland (es sei denn, eine der Parteien erhält die vorherige schriftliche Zustimmung der anderen Partei) folgendes unternehmen:
Für alle Hyland-Gesellschaften, die nicht in dieser Anlage A aufgeführt sind, gilt Abschnitt 15 (Abwerbeverbot; Einstellungsverbot) nicht.
Anlage B
Anwendbares Recht, Gerichtsstand.
Abschnitt 17.2 der Vereinbarung (Anwendbares Recht; Gerichtsstand) entspricht den in dieser Anlage B aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
Anlage C
Anwendbares Recht, Gerichtsstand.
Sofern es sich bei Hyland um Hyland Software Germany GmbH handelt, gilt die nachfolgende Anlage C:
Nach eigenem Ermessen von Hyland und nach schriftlicher Mitteilung an den Kunden sind alle überfälligen Rechnungsbeträge (mit Ausnahme der Bestrittenen Beträge) mit einem Zinssatz von neun (9) Prozentpunkten p.a. über den jeweils gültigen Zinssatz der EZB ab dem Fälligkeitsdatum bis zu dem Datum, an dem diese überfälligen Beträge und aufgelaufenen Zinsen vollständig gezahlt werden, zu verzinsen. Im Falle von: (a) Verzug des Kunden mit der Zahlung jeglicher Beträge (mit Ausnahme der Bestrittenen Beträge) und der Dauer dieses Verzugs von mindestens dreißig (30) Kalendertagen nach dem Fälligkeitsdatum einer solchen Zahlung; oder (b) wenn es den Parteien nicht gelingt, eine Streitigkeit in Bezug auf einen Bestrittenen Betrag innerhalb von sechzig (60) Tagen (oder innerhalb eines anderen von den Parteien schriftlich vereinbarten Zeitraums) nach Erhalt der schriftlichen Mitteilung über die rechtzeitige Beanstandung der Zahlung solcher Beträge durch Hyland beizulegen, hat Hyland das Recht, die Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung auszusetzen oder einzustellen, bis der Verzug behoben ist.
Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software, der Hyland Cloud Services, Add-On-Services, oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten, es sei denn, dies ist ausdrücklich gesetzlich erlaubt, weil es unerlässlich ist, diese Informationen zu erhalten, um die Interoperabilität eines unabhängig erstellten Computerprogramms mit anderen Programmen zu erreichen (§ 69e UrhG) oder zur Dekompilierung oder Vervielfältigung der Software nach den Bestimmungen des § 69d UrhG. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat, gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
10.1 Beschränkte Gewährleistung für Professionelle Dienstleistungen. Hyland gewährleistet gegenüber dem Kunden, dass die Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus (a), die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden; oder (b), die in Form von Personalaufstockung erbracht werden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von einem (1) Jahr ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnisse, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß diesem Abschnitt lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Gewährleistungsfrist schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder (a) das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann; oder (b) wenn Hyland feststellt, dass eine Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, dieser Vereinbarung in Bezug auf das nicht konforme Arbeitsergebnis kündigen; in diesem Fall erstattet Hyland, sofern der Kunde seinen Verpflichtungen bei der Kündigung nachkommt, einen Teil der vor dem Zeitpunkt der Kündigung bezahlten Dienstleistungsgebühren in Bezug auf die Erstellung und Implementierung eines solchen Arbeitsergebnisses. Die gesetzlichen Gewährleistungsrechte des Kunden bleiben vorbehaltlich der ausdrücklichen Bestimmungen dieser Vereinbarung unberührt.
10.4 Gewährleistungsausschluss.
Abschnitt 10.4 wird wie folgt ergänzt: Die gesetzlichen Gewährleistungsrechte des Kunden bleiben unberührt.
10.5 Folgendes wird als neuer Abschnitt 10.5 ergänzt:
In dem Maße, in dem die im Rahmen der vorliegenden Vereinbarung erbrachten Professionellen Dienstleistungen einen Werkvertrag darstellen, gelten in dieser Hinsicht die gesetzlichen Gewährleistungsbestimmungen mit folgender Einschränkung: Ausgenommen bei vorsätzlichem oder grob fahrlässigem Verhalten seitens Hyland wird die gesetzliche Gewährleistungsfrist auf ein Jahr beschränkt, beginnend mit der Abnahme der entsprechenden Professionellen Dienstleistungen.
Diese Gewährleistung schließt ausdrücklich nicht mit der Leistungsausführung zusammenhängende Probleme aus, die als Folge von Fehlfunktionen oder Mängeln bei Hard- oder Firmware, von Softwareprogrammen, die nicht von Hyland entwickelt wurden, von unrichtigen Daten oder unrichtigen Verfahren, die vom Kunden oder von Dritten verwendet bzw. vorgenommen werden, oder der Nichterfüllung seiner Verpflichtungen in Verbindung mit dem von dieser Vereinbarung erfassten Projekt von Seiten des Kunden entstehen. In diesen Fällen verpflichtet sich der Kunde, Hyland den Zeit- und Materialaufwand für Professionelle Dienstleistungen zu erstatten, die von Hyland auf Ersuchen des Kunden um Abhilfe bei nicht mit den Leistungen zusammenhängenden und damit ausgeschlossenen Problemen ausgeführt werden.
DIE HAFTUNG VON HYLAND IST BEI VORSATZ UND GROBER FAHRLÄSSIGKEIT UNBESCHRÄNKT. BEI LEICHTER FAHRLÄSSIGKEIT HAFTET HYLAND NUR: (A) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG DES LEBENS, DES KÖRPERS ODER DER GESUNDHEIT ERGEBEN, (B) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT (D.H. EINER PFLICHT, DEREN ERFÜLLUNG DIE ORDNUNGSGEMÄSSE DURCHFÜHRUNG DES VERTRAGES ÜBERHAUPT ERST ERMÖGLICHT UND AUF DEREN EINHALTUNG DER KUNDE REGELMÄSSIG VERTRAUEN DARF) ERGEBEN; IM FALLE DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT IST DIE HAFTUNG VON HYLAND AUF DEN ERSATZ DES VORHERSEHBAREN, TYPISCHERWEISE EINTRETENDEN SCHADENS BEGRENZT.
DIE VORSTEHENDEN HAFTUNGSBESCHRÄNKUNGEN GELTEN NICHT, WENN HYLAND EINEN MANGEL ARGLISTIG VERSCHWIEGEN ODER EINE GARANTIE FÜR DIE BESCHAFFENHEIT DER SOFTWARE ÜBERNOMMEN HAT. GLEICHES GILT FÜR ANSPRÜCHE NACH DEM PRODUKTHAFTUNGSGESETZ.
EINE WEITERGEHENDE HAFTUNG VON HYLAND IST AUSGESCHLOSSEN.
Eine Abtretung von Geldforderungen nach § 354a HGB bleibt hiervon unberührt.
Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig befunden wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall werden die Parteien die betroffene Bestimmung durch eine gemeinsame Vereinbarung in einer Weise ändern, in der die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung bestmöglich erreicht werden
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Confidential - Ó 2023 Hyland Software, Inc.
Effective June 3rd 2023 to October 19th 2023
DownloadTÉRMINOS Y CONDICIONES DE SERVICIOS PROFESIONALES
A la Fecha de Entrada en Vigor del Documento de Incorporación, estos Términos y Condiciones de Servicios Profesionales (estos "Términos y Condiciones") forman parte del Documento de Incorporación (como definido abajo en la Sección 1).
1. TÉRMINOS DEFINIDOS.
"Contrato" significa estos Términos y Condiciones, junto con el Documento de Incorporación.
"Cliente" significa la entidad que ha suscrito el Documento de Incorporación con Hyland. En el caso de que la contraparte sea un distribuidor autorizado de Hyland, se aplicará la Sección 17.10 de estos Términos y Condiciones.
"Importes en Disputa" significan los importes establecidos en cualquier factura en las que el Cliente haya notificado por escrito a Hyland, antes de la fecha de vencimiento de la factura, exponiendo las objeciones del Cliente, con un detalle razonable, a dichos importes.
"Documentación" significa: (a) en la medida en que estén disponibles, los "Archivos de Ayuda" incluidos en el Software, o (b) si no se incluyen "Archivos de Ayuda" en el Software, cualquier otra documentación publicada por Hyland, en cada caso, que esté relacionada con las características funcionales, operativas o de rendimiento del Software.
"Hyland" significa la compañía Hyland que forma parte del Documento de Incorporación.
"Documento de Incorporación" significa la Propuesta de Servicios, Hoja de Pedido u otro acuerdo o documento suscrito entre el Cliente y Hyland y dentro del cual se haga referencia o se enlace a estos Términos y Condiciones de Servicios Profesionales.
"Innovaciones" significan todos los diseños, procesos, procedimientos, métodos e innovaciones que son desarrolladas, descubiertas, concebidas o introducidas por Hyland, trabajando solo o en colaboración con otros, durante la ejecución del presente Contrato.
"Partes" significan Hyland y el Cliente y cada uno, una "Parte".
"Servicios Profesionales" significan los servicios prestados por Hyland en virtud del Documento de Incorporación.
"Acto Prohibido" significa (a) eliminación de cualquier aviso de copyright, marca comercial u otros derechos de propiedad que aparezcan durante el use del Software, de los Productos de Trabajo o de la Documentación ; (b) venta, transferencia, arrendamiento o sublicencia de cualquier Software, Productos de Trabajo o Documentación a un tercero; (c) salvo lo expresamente permitido con respecto al Software, los Productos de Trabajo, alterar o modificar el Software, los Productos de Trabajo o la Documentación; (d) realizar ingeniería inversa, desmontar, descompilar o intentar obtener el código fuente del Software, los Productos de Trabajo o la Documentación, o preparar trabajos derivados de los mismos; o (e) incumplir cualquier disposición de las Secciones 9, 13 o 14 de estos Términos y Condiciones.
"Software" significa el/los producto(s) o solución de software propiedad de Hyland para los que el Cliente ha obtenido una licencia válida de Hyland o de uno de sus distribuidores autorizados.
"Especificaciones" significan las especificaciones funcionales definitivas y finales de los Productos de Trabajo, en su caso, elaboradas por Hyland en virtud del Documento de Incorporación. Las Especificaciones deben ser consideradas Documentación, cuando se utilicen en el presente Contrato, en el caso de los Productos de Trabajo.
"Hora de Trabajo" significa los servicios de una (1) persona por un período de una (1) hora (o cualquier parte de la misma) durante el horario laboral habitual.
"Productos de Trabajo" significan todos los elementos que tengan la naturaleza de un producto de software, incluidos el código fuente, el código objeto, los scripts y cualquier componente o elemento de éstos, o los elementos creados utilizando las herramientas de configuración del Software, junto con todos y cada uno de los documentos de diseño asociados a los elementos que tengan la naturaleza de un producto de software, en cada caso creados, desarrollados, descubiertos, concebidos o introducidos por Hyland, trabajando solo o en colaboración con otros, en la prestación de los servicios previstos en el presente Contrato. Si es aplicable, los Productos de Trabajo incluirán cualquier plantilla preconfigurada o VBScripts que hayan sido o puedan ser creados o proporcionados de otro modo por Hyland al Cliente como parte de la configuración del módulo de captura avanzada del Software.
2. CUMPLIMIENTO. Hyland prestará los Servicios Profesionales descritos en el presente Contrato en el momento y según el cronograma establecidos en el presente Contrato o según lo acordado mutuamente por las Partes por escrito. Si se produjera algún retraso en la prestación de los Servicios Profesionales únicamente como consecuencia de cualquier información incorrecta, suposición incorrecta o incumplimiento por parte del Cliente de sus obligaciones en relación con el presente Contrato, podrá ampliarse el calendario de ejecución del proyecto aplicable. Hyland no tendrá responsabilidad alguna por los costes o gastos derivados de dichos retrasos. En caso de que no se cumpla algún hito establecido en el presente Contrato debido a un retraso causado exclusivamente por Hyland, y siempre que dicha causa no sea un caso de fuerza mayor, Hyland se compromete, sin cargo adicional para el Cliente, a destinar los recursos y el personal adicionales que sean necesarios para garantizar que dicho retraso no provoque el retraso de hitos posteriores o la finalización de los Servicios Profesionales. Las Partes acuerdan que los Servicios Profesionales o cualesquiera Productos de Trabajo descritos en el Documento de Incorporación que hayan sido realizados o desarrollados, en su totalidad o en parte, por Hyland antes de la ejecución de este Contrato, estarán cubiertos por todos los términos y condiciones de este Contrato.
3. CAMBIOS AL DOCUMENTO DE INCORPORACIÓN. Hyland o el Cliente podrán, en cualquier momento, solicitar razonablemente una modificación al Documento de Incorporación. Cualquier cambio que las Partes acepten mutuamente (en adelante "Cambio") se establecerá por un escrito preparado por Hyland y firmada por ambas Partes, que haga referencia específica al Documento de Incorporación. En caso de que las Partes no puedan llegar a un acuerdo mutuo sobre un Cambio propuesto o una orden de cambio propuesta, y dicho Cambio propuesto se refiera a un componente material del proyecto objeto del Documento de Incorporación, cualquiera de las Partes podrá rescindir el presente Contrato previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
4. OBLIGACIONES DEL CLIENTE.
4.1 Asistencia y obligaciones. El Cliente acepta que cooperará con Hyland y le prestará asistencia en la prestación de los Servicios Profesionales en virtud del presente Contrato, proporcionará los recursos especificados en el presente Contrato y realizará o cumplirá todas las obligaciones que el Cliente deba realizar o cumplir en virtud de los términos del presente Contrato. Durante cualquier periodo en el que Hyland preste servicios en virtud del presente, el Cliente proporcionará al equipo de proyecto de Hyland acceso local (in situ) y remoto (fuera de las instalaciones) independiente mediante el uso de conexiones seguras, como una conexión de red, una conexión VPN u otros métodos similares, y cuentas de usuario dedicadas con los privilegios adecuados al Software, hardware o máquinas virtuales aplicables asignados al sistema de Software aplicable. Se concederá acceso remoto y local para todos los entornos aprovisionados, incluida la producción. El Cliente reconoce que, si no presta asistencia o no realiza o cumple sus obligaciones de conformidad con el presente Contrato, la capacidad de Hyland para prestar los Servicios Profesionales, cumplir el calendario de rendimiento establecido en el presente Contrato y mantener las tarifas de servicios razonablemente en línea con cualquier estimación realizada en el presente Contrato puede verse afectada negativamente.
4.2 Derechos de Software de Terceros. A pesar de cualquier condición contraria, si el Cliente solicita a Hyland que preste Servicios Profesionales en o con respecto a cualquier software de terceros, el Cliente declara y garantiza a Hyland que el Cliente tiene todos los derechos necesarios para permitir que Hyland lo haga.
4.3 Protección de los Sistemas del Cliente. EXCEPTO EN LO RELATIVO A UNA SOLUCIÓN DE ALOJAMIENTO POR HYLAND, EL CLIENTE ENTIENDE QUE ES EL ÚNICO RESPONSABLE DE TOMAR LAS MEDIDAS ADECUADAS PARA AISLAR Y REALIZAR COPIAS DE SEGURIDAD O ARCHIVAR DE OTRO MODO SUS SISTEMAS INFORMÁTICOS, INCLUIDOS SUS PROGRAMAS INFORMÁTICOS, DATOS Y ARCHIVOS.
4.4 Entorno de Trabajo Seguro. El Cliente será responsable y se asegurará de que, mientras los empleados, agentes o subcontratistas de Hyland se encuentren en las instalaciones del Cliente, se tomen todas las precauciones legales y adecuadas en materia de salud y seguridad y estén plenamente operativas para proteger a dichas personas.
5. TARIFAS DE SERVICIOS. Salvo que se estipule lo contrario en el Documento de Incorporación: (a) Hyland cobrará al Cliente las tarifas de servicios por los Servicios Profesionales al precio de lista estándar de Hyland vigente en ese momento para los Servicios Profesionales aplicables y (b) Hyland facturará al Cliente las tarifas por los Servicios Profesionales mensualmente, a mes vencido, en función del número de Horas de trabajo necesarias para completar el proyecto y las tarifas por hora aplicables, y el Cliente abonará todos los importes de las facturas (salvo los Importes en Disputa) en su totalidad en un plazo de treinta (30) días a partir de la fecha de la factura. Cualquier estimación de las tarifas o de las Horas de Trabajo necesarias para completar el proyecto son aproximaciones del importe previsto de las tarifas y del tiempo necesario para completar el proyecto. El número real de Horas de Trabajo puede variar.
6. VIAJES Y GASTOS. El Cliente será responsable de pagar o reembolsar a Hyland todos los costes y gastos de bolsillo razonables en los que incurra Hyland en relación con la prestación de Servicios Profesionales en virtud del presente Contrato (incluidos las tarifas y gastos relativos a viajes, comidas, alojamiento y requisitos de registro de proveedores terceros) de conformidad con la política interna aplicable de Hyland para el reembolso de costes y gastos a sus empleados. Salvo que se estipule lo contrario en el Documento de Incorporación, Hyland facturará al Cliente todos los costes y gastos reembolsables mensualmente, a mes vencido; y el Cliente pagará en su totalidad cada una de las facturas emitidas en virtud del presente Contrato en un plazo neto de treinta (30) días a partir de la fecha en que Hyland emita dicha factura.
7. DETERMINADOS RECURSOS EN CASO DE IMPAGO O RETRASO EN EL PAGO. A elección de Hyland, que podrá ejercer mediante notificación por escrito al Cliente, cualquier importe vencido (salvo los Importes en Disputa) devengarán intereses a un tipo del uno y medio por ciento (1,5%) mensual (o, si es inferior, el tipo máximo legalmente exigible) desde la fecha de vencimiento hasta la fecha en que dichos importes vencidos y los intereses devengados se abonen en su totalidad. En caso de (a) incumplimiento por parte del Cliente en el pago de cualquier importe (salvo los Importes en Disputa) , cuyo incumplimiento continúe sin subsanarse durante al menos treinta (30) días naturales después de la fecha de vencimiento de dicho pago o (b) incapacidad de las Partes para resolver una disputa relacionada con un Importe en Disputa en un plazo de sesenta (60) días (o cualquier otro período acordado mutuamente, por escrito, por las Partes) tras la recepción por parte de Hyland de una notificación por escrito del Cliente en la que se impugne puntualmente el pago de dichos importes, Hyland tendrá derecho a suspender o cesar la prestación de cualquier Servicio Profesional el presente Contrato a menos que se haya subsanado dicho incumplimiento o se haya resuelto dicha disputa.
8. IMPUESTOS Y CARGAS GUBERNAMENTALES. Todos los pagos realizados en virtud del presente Contrato excluyen todos los impuestos y cargos gubernamentales aplicables (como aranceles), todos los cuales correrán a cargo del Cliente (salvo los impuestos sobre los ingresos de Hyland). En caso de que el Cliente esté obligado por ley a retener impuestos, el Cliente acepta proporcionar a Hyland todos los recibos y la documentación necesarios que justifiquen dicho pago. Si Hyland está obligado por ley a remitir cualquier impuesto o carga gubernamental en nombre o por cuenta del Cliente, el Cliente acepta reembolsar a Hyland en un plazo de treinta (30) días a partir de la fecha en que Hyland notifique al Cliente por escrito dicha remisión. El Cliente acepta proporcionar a Hyland certificados válidos de exención de impuestos antes de cualquier envío que Hyland deba realizar en nombre o por cuenta del Cliente, cuando dichos certificados sean aplicables.
9. PRODUCTOS DE TRABAJO.
9.1 Propiedad. EL PRESENTE CONTRATO NO ES UN CONTRATO DE TRABAJO POR ENCARGO. Hyland o sus proveedores conservan, con carácter exclusivo, para sí o para ellos, todos los derechos, títulos e intereses sobre cualquier propiedad intelectual desarrollada, descubierta, concebida o introducida por Hyland durante la ejecución del presente Contrato, incluidas, entre otras, todas las patentes, solicitudes de patentes, derechos de autor, marcas comerciales, otros derechos de propiedad intelectual y derechos de información confidencial y de propiedad sobre cualquier Producto de Trabajo, Innovación o Documentación, o relacionados con ellos. El Software, la Documentación y los Productos de Trabajo están protegidos por leyes de derechos de autor y tratados internacionales sobre derechos de autor, así como por otras leyes y tratados sobre propiedad intelectual. No se transfiere al Cliente ningún derecho de propiedad sobre el Software, las Innovaciones o los Productos de Trabajo. El Cliente acepta que nada de lo dispuesto en el presente Contrato o en los documentos asociados le otorga derecho, titularidad o interés alguno sobre el Software, la Documentación o los Productos de Trabajo, salvo los derechos expresos limitados que se conceden en el presente Contrato.
9.2 Licencia de los Productos de Trabajo. Hyland concede al Cliente una licencia limitada, no exclusiva y no transferible para utilizar los Productos de Trabajo únicamente en relación con el uso autorizado por parte del Cliente del Software o de otros productos o servicios de Hyland (conjuntamente, "Producto Principal de Hyland") con los que Hyland haya entregado dicho Producto de Trabajo para su uso por parte del Cliente. El Cliente no podrá: (a) realizar ni autorizar la realización de copias de ningún Producto de Trabajo; (b) eliminar ningún aviso de Hyland en los Productos de Trabajo; (c) vender, transferir, alquilar, contrato de leasing, tiempo compartido o sublicenciar los Productos de Trabajo a terceros; o (d) desensamblar, descompilar, realizar ingeniería inversa o intentar obtener el código fuente de cualquier Producto de Trabajo por cualquier motivo. Asimismo, el Cliente acepta que, en relación con cualquier uso de los Productos de Trabajo por parte del Cliente, los Productos de Trabajo no se copiarán ni instalarán en servidores adicionales a menos que el Cliente haya adquirido una licencia para ello. Se aplicarán a los Productos de Trabajo todas las restricciones de uso del Producto Principal de Hyland, incluidas, entre otras, las restricciones a la exportación y las disposiciones relativas al Usuario final del Gobierno de EE. UU. en virtud de los términos del acuerdo de licencia en virtud del cual el Cliente recibió el derecho a utilizar el Software con el que se utilizarán los Productos de Trabajo. Si la licencia del Producto Principal de Hyland con la que Hyland entregó dicho Producto de Trabajo para su uso por parte del Cliente finaliza, el derecho del Cliente a utilizar el Producto de Trabajo aplicable también finalizará. Todos los derechos y obligaciones posteriores a la finalización con respecto al Producto Principal de Hyland aplicable también se aplicarán al Producto de Trabajo.
9.3 Modificación de Productos de Trabajo.
(a) Forma de los Productos de Trabajo entregados. La forma en la que Hyland entregue los Productos de Trabajo será determinada por Hyland en función del propósito y la funcionalidad del Producto de Trabajo.
(b) Productos de Trabajo de Configuración. Si Hyland entrega un Producto de Trabajo: (a) en forma de (i) código fuente compilado por las herramientas del Software en lenguaje de máquina; o (ii) un script; o (b) creado utilizando las herramientas de configuración del Software (un "Producto de Trabajo de Configuración"), Hyland concede al Cliente el derecho limitado a modificar el Producto de Trabajo de Configuración, siempre que dicho Producto de Trabajo de Configuración modificado se utilice únicamente de conformidad con los términos de la licencia limitada para dicho Producto de Trabajo concedida en virtud de la presente Sección.
(c) Productos de Trabajo Independientes. Si Hyland entrega un Producto de Trabajo que no es un Producto de Trabajo de Configuración (un "Producto de Trabajo Independiente"), el Cliente no podrá alterar ni modificar dicho Producto de Trabajo Independiente, salvo que se indique lo contrario en la última frase de este párrafo. Si Hyland entrega un Producto de Trabajo Independiente y el Cliente desea obtener el derecho a modificarlo, las Partes podrán acordar mutuamente que Hyland entregue al Cliente una copia del formato del Producto de Trabajo Independiente que sea necesaria para que el Cliente pueda completar sus modificaciones, siempre y cuando el Cliente realice a Hyland el previo pago de cualquier tarifas adicionales por Servicios Profesionales que Hyland pueda cobrar por preparar y entregar dicho formato. En tal caso, Hyland concede al Cliente el derecho a modificar y, si fuera necesario, compilar el formato entregado del Producto de Trabajo Independiente, siempre que dicho Producto de Trabajo Independiente modificado se utilice únicamente de conformidad con los términos de la licencia limitada de dicho Producto de Trabajo concedida en virtud de la presente Sección.
9.4 Indemnización por Infracción de los Productos de Trabajo. Hyland acepta indemnizar al Cliente por cualquier responsabilidad y gasto, incluidos los honorarios razonables de abogados, derivados o relacionados con cualquier reclamación, acción o procedimiento de terceros iniciado contra el Cliente basado en cualquier infracción o apropiación indebida por parte de los Productos de Trabajo de cualquier patente, derecho de autor registrado o marca comercial registrada de un tercero, siempre que Hyland: (i) sea notificado rápidamente después de que el Cliente reciba la notificación de dicha reclamación; (ii) sea el único encargado de la defensa y de las negociaciones para llegar a un acuerdo con respecto a dicha reclamación, siempre que Hyland no llegue a un acuerdo con respecto a dicha reclamación sin el consentimiento previo por escrito del Cliente si dicho acuerdo contiene una estipulación o admisión o reconocimiento de cualquier responsabilidad o acto ilícito por parte del Cliente o requiere de otro modo un pago por parte del Cliente; (iii) reciba la cooperación razonable del Cliente en la defensa o resolución de dicha reclamación; y (iv) tenga derecho, en caso de que se produzca o sea probable (en opinión de Hyland) que se produzca una infracción o apropiación indebida, a obtener para el Cliente el derecho a seguir utilizando los Productos de Trabajo o a sustituir las partes pertinentes de los Productos de Trabajo por otras partes equivalentes que no supongan una infracción.
(a) Retirada y reembolso. Si Hyland no puede llevar a cabo ninguna de las opciones establecidas en la Sección 9.4(iv), Hyland retirará la parte infractora de los Productos de Trabajo y reembolsará al Cliente las tarifas de servicios abonadas, en su caso, por el Cliente en relación únicamente con la creación e implementación de los Productos de Trabajo infractores en virtud del presente Contrato.
(b) Exclusiones. Sin perjuicio de cualquier disposición en contrario, Hyland no tendrá obligación alguna ante el Cliente de defender o satisfacer ninguna reclamación presentada contra el Cliente y descrita de otro modo en la Sección 9.4 que surja de: (i) el Cliente utilizó los Productos de Trabajo por parte del Cliente de forma expresamente no permitida por el presente Contrato; (ii) la combinación de los Productos de Trabajo con cualquier producto no suministrado por Hyland al Cliente; (iii) la modificación o adición de los Productos de Trabajo por parte de otro que no sea Hyland o cualquiera de sus distribuidores autorizados contratados específicamente por Hyland para proporcionar dicha modificación o adición; o (iv) los métodos, procesos, información o datos empresariales del Cliente.
(c) ESTA SECCIÓN 9.4 ESTABLECE LA RESPONSABILIDAD TOTAL DE HYLAND Y EL RECURSO ÚNICO Y EXCLUSIVO DEL CLIENTE CON RESPECTO A CUALQUIER SUPUESTA INFRACCIÓN O APROPIACIÓN INDEBIDA DE PROPIEDAD INTELECTUAL O PROPIEDAD INTELECTUAL POR LOS PRODUCTOS DE TRABAJO.
10. GARANTÍA LIMITADA PARA SERVICIOS Y PRODUCTOS DE TRABAJO.
10.1 Garantía Limitada para los Servicios Profesionales. Durante un periodo de sesenta (60) días a partir de la fecha de finalización de los Servicios Profesionales, Hyland garantiza al Cliente que dichos Servicios Profesionales se han prestado de forma correcta y profesional y sustancialmente de acuerdo con los estándares del sector. Esta garantía excluye específicamente los problemas de rendimiento causados por datos o procedimientos incorrectos utilizados o proporcionados por el Cliente o un tercero, o por fallos del Cliente para realizar y cumplir sus obligaciones en virtud del presente Contrato.
10.2 Garantía limitada de los Productos de Trabajo. Durante un periodo de sesenta (60) días a partir de la fecha en que Hyand haya entregado al Cliente un Producto de Trabajo terminado, Hyland garantiza al Cliente que dicho Producto de Trabajo, cuando se instale y utilice correctamente, funcionará en todos los aspectos materiales tal y como se describe en las Especificaciones. Los términos de esta garantía no se aplicarán a, y Hyland no tendrá ninguna responsabilidad por cualquier no conformidad relacionada con, cualquier Producto de Trabajo que haya sido (a) modificado o añadido por el Cliente o un tercero, (b) utilizado en combinación con equipos o software distintos de los que se ajustan a las Especificaciones, o (c) mal utilizado o abusado.
10.3 Recurso. La única obligación de Hyland, y el único y exclusivo recurso del Cliente en caso de no conformidad con las garantías limitadas expresas de las Secciones 10.1 y 10.2 serán los siguientes: siempre que, dentro del periodo aplicable de sesenta (60) días, el Cliente notifique por escrito a Hyland la no conformidad, Hyland realizará todos los esfuerzos razonables para volver a prestar los servicios no conformes en un intento de corregir la(s) no conformidad(es) o, en el caso de un Producto de Trabajo, reparar o sustituir el Producto de Trabajo no conforme, lo que puede incluir la entrega de una solución comercialmente razonable para subsanar la no conformidad. Si Hyland no puede corregir dicha(s) disconformidad(es) tras un periodo de tiempo razonable o determina que la reparación o sustitución del Producto de Trabajo no es comercialmente razonable, el único y exclusivo recurso del Cliente será rescindir el presente Contrato, en cuyo caso Hyland reembolsará al Cliente la parte de las tarifas de servicios en virtud del presente Contrato relacionados directamente con dichos Servicios Profesionales disconformes o con la creación e implementación del Producto de Trabajo disconforme, en cualquier caso abonados antes de dicha rescisión.
10.4 Exclusión de garantías. SALVO EN LOS CASOS INDICADOS ANTERIORMENTE, HYLAND Y SUS PROVEEDORES NO OFRECEN NINGUNA GARANTÍA NI DECLARACIÓN EN RELACIÓN CON LOS PRODUCTOS DE TRABAJO, LAS INNOVACIONES, LA INFORMACIÓN O LOS SERVICIOS PROFESIONALES PRESTADOS EN VIRTUD DEL PRESENTE CONTRATO. HYLAND Y SUS PROVEEDORES RECHAZAN Y EXCLUYEN CUALQUIER OTRA GARANTÍA EXPRESA, IMPLÍCITA Y LEGAL, INCLUIDAS, ENTRE OTRAS, LAS GARANTÍAS CONTRA INFRACCIONES, LAS GARANTÍAS IMPLÍCITAS DE COMERCIABILIDAD E IDONEIDAD PARA UN FIN DETERMINADO, Y LAS GARANTÍAS QUE PUEDAN SURGIR O CONSIDERARSE SURGIDAS DE CUALQUIER CURSO DE EJECUCIÓN, CURSO DE NEGOCIACIÓN O USO COMERCIAL. HYLAND Y SUS PROVEEDORES NO GARANTIZAN QUE LOS SERVICIOS PROFESIONALES O LOS PRODUCTOS DE TRABAJO PROPORCIONADOS SATISFAGAN LOS REQUISITOS DEL CLIENTE O ESTÉN EXENTOS DE DEFECTOS O ERRORES, NI QUE EL FUNCIONAMIENTO DEL SOFTWARE O DE LOS PRODUCTOS DE TRABAJO PROPORCIONADOS EN VIRTUD DEL PRESENTE CONTRATO SEA ININTERRUMPIDO. SALVO QUE SE INDIQUE EXPRESAMENTE EN EL PRESENTE CONTRATO, HYLAND NO ASUME RESPONSABILIDAD ALGUNA CON RESPECTO AL HARDWARE, FIRMWARE, SOFTWARE O SERVICIOS DE TERCEROS.
11. RESCISIÓN.
11.1 En General. Salvo que se indique lo contrario en un Documento de Incorporación , o las partes acuerden lo contrario por escrito, el Cliente o Hyland podrán rescindir el presente Contrato, por cualquier motivo, previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
11.2 Por Cualquiera de las Partes. Cualquiera de las Partes podrá rescindir el presente Contrato en su totalidad, con efecto inmediato previa notificación por escrito a la otra Parte, si la otra Parte ha incumplido una disposición sustancial del presente Contrato y no ha subsanado el incumplimiento en un plazo de treinta (30) días a partir de la recepción de la notificación por escrito del incumplimiento enviada por la Parte que no ha incumplido; no obstante, Hyland no estará obligado a dar al Cliente ninguna oportunidad de subsanar ningún incumplimiento en el caso de cualquier Acto Prohibido, todos los cuales se consideran, a todos los efectos, disposiciones sustanciales del presente Contrato.
11.3 Rescisión del Presente Contrato. En caso de rescisión del presente Contrato, el Cliente acepta compensar a Hyland por todos los Servicios Profesionales ya prestados antes de la fecha de rescisión, incluida ésta, salvo en la medida que Hyland haya incumplido sus obligaciones de prestar dichos Servicios Profesionales y dicho incumplimiento sea la causa de la rescisión.
11.4 Efectos de la Rescisión. En caso de rescisión del presente Contrato en su totalidad (a menos que sea alegada por Hyland debido al incumplimiento del Cliente), la licencia del Cliente para utilizar los Productos de Trabajo previstos en el presente Contrato seguirá vigente de acuerdo con los términos previstos.
12. LIMITACIONES DE RESPONSABILIDAD.
12.1 NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, OMISIÓN O CUALQUIER OTRA TEORÍA LEGAL, DE NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENTE, NI DE NINGUNA PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUIDOS LAS TARIFAS DEBIDOS EN VIRTUD DEL PRESENTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REPARACIÓN DE LA COBERTURA, O DAÑOS POR INTERRUPCIÓN DEL NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE DICHOS DAÑOS, PÉRDIDAS, GASTOS O COSTES.
12.2 LA RESPONSABILIDAD TOTAL Y ACUMULATIVA DE HYLAND (INCLUIDOS SUS FILIALES Y PROVEEDORES) DERIVADA DEL PRESENTE CONTRATO, YA SEA CONTRACTUAL O EXTRACONTRACTUAL, (INCLUIDA LA NEGLIGENCIA, O CUALQUIER OTRA TEORÍA LEGAL) NO SUPERARÁ EN NINGÚN CASO LOS IMPORTES TOTALES PAGADOS REALMENTE A HYLAND POR EL CLIENTE (MENOS CUALQUIER REEMBOLSO O CRÉDITO) POR LA PRESTACIÓN DE LOS SERVICIOS QUE DEN LUGAR A LA RECLAMACIÓN DURANTE EL PERÍODO DE DOCE (12) MESES INMEDIATAMENTE ANTERIOR AL PRIMER EVENTO QUE DÉ LUGAR A DICHA RECLAMACIÓN. CON RESPECTO A CUALQUIER PRODUCTO O SERVICIO PROFESIONAL PROPORCIONADO AL CLIENTE DE FORMA GRATUITA (COMO SOFTWARE O SERVICIOS DE EVALUACIÓN), NI HYLAND NI NINGUNA DE SUS FILIALES O PROVEEDORES SERÁN RESPONSABLES DE LOS DAÑOS.
13. EXPORTACIÓN. El Software, los Productos de Trabajo o la Documentación suministrados en virtud del presente Contrato están sujetos a las leyes de control de exportaciones de los Estados Unidos y otras jurisdicciones. El Cliente se compromete a cumplir plenamente todas las leyes pertinentes de control de las exportaciones, incluidos los reglamentos del Departamento de Comercio de los Estados Unidos y todas las leyes de control de las exportaciones de los Estados Unidos, incluidos, entre otros, los Regulaciones de Administración de Exportaciones (EAR) del Departamento de Comercio de los Estados Unidos, para garantizar que el Software, los Productos de Trabajo o la Documentación no se exporten infringiendo la legislación de los Estados Unidos de América o las leyes y regulaciones de otras jurisdicciones. El Cliente acepta que no exportará ni reexportará el Software, los Productos de Trabajo o la Documentación a ninguna organización o nacional de los territorios con embargo de los Estados Unidos de América de Cuba, Irán, Corea del Norte, Sudán, Siria o cualquier otro territorio o nación con respecto a los cuales el Departamento de Comercio de los Estados Unidos de América, el Departamento de Estado de los Estados Unidos de América, el Departamento del Tesoro de los Estados Unidos de América, la U.E. y/o cualquier otro Estado nacional mantengan algún programa de sanciones por actividades comerciales. El Cliente no utilizará el Software, los Productos de Trabajo ni la Documentación para ningún uso prohibido en virtud de las leyes y normativas aplicables de los Estados Unidos de América y otras jurisdicciones, incluyendo, pero sin limitarse a, cualquier aplicación relacionada con, o con fines asociados a, la guerra nuclear, química o biológica, la tecnología de misiles (incluidos los vehículos aéreos no tripulados), la aplicación militar o cualquier otro uso prohibido o restringido en virtud de la Normativa de Administración de Exportaciones de los Estados Unidos de América (EAR) o cualquier otra ley, norma o regulación pertinente de los Estados Unidos de América y otras jurisdicciones.
14. INFORMACIÓN CONFIDENCIAL.
14.1 La "Información Confidencial" será aquella información que esté marcada como "Privada" o "Confidencial", que sea conocida por el destinatario como confidencial o que su naturaleza sea habitualmente sea confidencial entre partes comerciales, salvo lo dispuesto en la siguiente frase. La Información Confidencial no incluirá información que (a) sea o pase a ser generalmente conocida por el público sin incumplimiento del presente Contrato por parte del destinatario, o (b) el destinatario demuestre que ha estado en su posesión antes de su divulgación por la parte divulgadora, o (c) el destinatario reciba de un tercero que no esté sujeto, a conocimiento del destinatario, a restricciones, obligaciones o deberes de no divulgación a la parte divulgadora, o (d) el destinatario demuestre que ha sido desarrollada de forma independiente por el destinatario sin referencia o uso de la información de la parte divulgadora.
14.2 Cada una de las partes acuerda que, con respecto a la Información Confidencial de la otra Parte, o de sus filiales, dicha Parte, como receptora, utilizará el mismo grado de cuidado para proteger su propia Información Confidencial, pero en ningún caso menos que el cuidado razonable, y no utilizará ni revelará a terceros dicha Información Confidencial, salvo en la medida en que lo exija la ley o una orden judicial, o según lo dispuesto en el presente Contrato. El Cliente se compromete a tomar las medidas razonables para proteger todos los Productos de Trabajo e Innovaciones, así como cualquier Documentación relacionada, entregados por el Hyland al Cliente en virtud del Contrato frente a copias o usos no autorizados. Cada una de las Partes será responsable de cualquier incumplimiento de esta Sección 14 cometido por cualquiera de sus empleados, agentes, consultores, contratistas o representantes.
14.3 Las Partes reconocen que un recurso legal por incumplimiento de las disposiciones del presente Contrato relativas a la Información Confidencial y a los derechos de propiedad intelectual no será adecuado para la protección de la parte perjudicada y, en consecuencia, la parte perjudicada tendrá derecho a solicitar, además de cualquier otra reparación y recurso a su disposición, un cumplimiento específico o medidas cautelares para hacer cumplir las disposiciones del presente Contrato.
15. NO CAPTACIÓN; NO CONTRATACIÓN. Véase el Anexo A adjunto.
16. TÉRMINOS Y CONDICIONES ADICIONALES. Si Hyland es una de las compañías de Hyland que se indican a continuación, se aplicarán los términos y condiciones adicionales o alternativos establecidos en el Anexo de términos adicionales aplicable que se indica a continuación:
| Compañía de Hyland | Anexo de Términos Adicionales |
| Hyland Colombia S.A.S. | Anexo C |
| Hyland Mexico S. de R.L. de C.V. | Anexo D |
| Hyland Software, Inc., si el Cliente se localiza en Perú | Anexo E |
17. CONDICIONES GENERALES.
17.1. Fuerza Mayor. Ningún incumplimiento, retraso o falta de cumplimiento de cualquier obligación de una Parte (excepto el pago de dinero) constituirá un incumplimiento o violación en la medida en que dicho incumplimiento, retraso o falta de cumplimiento surja de una causa, existente o futura, fuera del control (incluyendo, pero no limitado a: acción o inacción de la autoridad gubernamental, civil o militar; incendio; huelga, cierre patronal u otro conflicto laboral; inundación; guerra; disturbios; robo; terremoto; desastre natural o caso fortuito; emergencias nacionales; indisponibilidad de materiales o servicios públicos; sabotaje; virus; o acto, negligencia o incumplimiento de la otra Parte) y sin negligencia o dolo de la Parte a la que se imputa el incumplimiento, retraso o incumplimiento. Cualquiera de las Partes que desee invocar alguna de las causas anteriores como excusa para el incumplimiento, la demora o el retraso en el cumplimiento deberá, cuando surja la causa, notificar a la otra Parte sin demora y por escrito los hechos que constituyen dicha causa; y, cuando la causa deje de existir, notificar este hecho sin demora a la otra Parte. La presente Sección 17.1 no limitará en modo alguno el derecho de cualquiera de las Partes a reclamar a terceros por los daños sufridos debido a dichas causas. Si cualquier fecha de cumplimiento en virtud del presente Contrato se pospone o prorroga de conformidad con la presente Sección 17.1 durante más de noventa (90) días naturales, la otra Parte, mediante notificación por escrito entregada durante el aplazamiento o la prórroga, y al menos treinta (30) días antes de la fecha efectiva de rescisión, podrá rescindir el presente Contrato.
17.2. Ley aplicable; Jurisdicción. Véase el Anexo B adjunto.
17.3 Efecto Vinculante; Cesiones. El presente Contrato será vinculante y adaptará en beneficio de las Partes y de sus respectivos sucesores y cesionarios autorizados. Ninguna de las Partes podrá ceder, transferir o sublicenciar la totalidad o parte del presente Contrato o sus derechos u obligaciones en virtud del mismo, en su totalidad o en parte, a cualquier otra persona o entidad sin el consentimiento previo por escrito de la otra Parte; siempre que dicho consentimiento no sea denegado injustificadamente en el caso de cualquier cesión o transferencia por una Parte del presente Contrato en su totalidad a la entidad superviviente de una fusión o consolidación o a cualquier comprador de sustancialmente todos los activos de dicha Parte que asuma por escrito todas las obligaciones y deberes de dicha Parte en virtud del presente Contrato. Cualquier cesión realizada sin cumplir las disposiciones de esta Sección será nula y sin efecto. No obstante cualquier disposición en contrario, Hyland puede ceder este Contrato a cualquier filial de Hyland sin el consentimiento de la otra parte mediante notificación por escrito a la otra parte. El Cliente reconoce que Hyland y/o cualquiera de sus filiales puede cumplir cualquiera de las obligaciones de Hyland contempladas en el presente Contrato.
17.4 Subcontratación. Hyland podrá subcontratar la totalidad o parte de los Servicios Profesionales, siempre que Hyland siga siendo responsable ante el Cliente de la prestación de los servicios subcontratados.
17.5 Contratista Independiente. Las Partes reconocen que Hyland es un contratista independiente y que será responsable de sus obligaciones como empleador de las personas que presten los Servicios Profesionales.
17.6 Terceros. Nada de lo aquí expresado o implícito pretende o deberá interpretarse para conferir o dar a cualquier persona o entidad, distinta de las Partes, ningún derecho o recurso en virtud del presente Contrato; sin embargo, los terceros proveedores de productos de software incluidos con el Software son terceros beneficiarios del presente Contrato en la medida en que se aplique a sus respectivos productos de software.
17.7 Integración. El presente Contrato, incluido cualquier exhibit, anexo o acuerdo adjunto al presente Contrato o al que se haga referencia en el mismo, establece la totalidad del acuerdo y entendimiento de las Partes en relación con el objeto de este y sustituye todos los acuerdos, negociaciones y discusiones anteriores entre ellas sobre el mismo objeto. Cualquier otro término que varíe o se añada a los términos de este Contrato, ya sea contenido en cualquier orden de compra u otra comunicación electrónica, escrita u oral hecha de una Parte a la otra, es rechazado y será nulo y sin fuerza o efecto a menos que se incluya en una enmienda escrita firmada mutuamente por las Partes. En la medida en que exista un conflicto entre estas Condiciones Generales y el Documento de Incorporación, prevalecerán los términos de estas Condiciones Generales.
17.8 Divisibilidad. Si alguna disposición del presente Contrato es considerada inaplicable o inválida por una autoridad competente, dicha inaplicabilidad o invalidez no hará que el presente Contrato sea inaplicable o inválido en su totalidad y, en tal caso, dicha disposición se modificará e interpretará de forma que cumpla de la mejor manera posible los objetivos de dicha disposición inaplicable o inválida dentro de los límites de la legislación aplicable o de las decisiones judiciales aplicables.
17.9 Políticas Corporativas. Hyland reconoce que el Cliente mantiene políticas corporativas que se aplican a las personas que prestarán servicios utilizando las instalaciones o el sistema del Cliente (colectivamente, las “Políticas Corporativas”). Al prestar Servicios Profesionales en virtud de este Contrato, Hyland realizará esfuerzos razonables para cumplir con las Políticas Corporativas en la medida en que dichas Políticas Corporativas sean aplicables a la prestación de dichos Servicios Profesionales, no entren en conflicto con el Contrato ni con ningún otro acuerdo relacionado vigente entre Hyland y el Cliente y se hayan facilitado a Hyland con una antelación razonable a la contratación de los Servicios Profesionales. Sin perjuicio de cualquier disposición en contrario en dichas Políticas Corporativas, si un recurso de Hyland incumple las Políticas Corporativas y dicho incumplimiento no constituye de otro modo un incumplimiento de este Contrato, el Cliente reconoce y acepta que Hyland no habrá incumplido el contrato ni será responsable de otro modo por daños y perjuicios, y como único recurso del Cliente, el Cliente podrá retirar inmediatamente de sus instalaciones el/los recurso(s) individual(es) responsable(s) del incumplimiento y exigir que dicho(s) recurso(s) individual(es) no realice(n) más Servicios Profesionales para el Cliente.
17.10 Distribuidor Autorizado. En la medida en que el Cliente sea un distribuidor autorizado de Hyland, el Documento de Incorporación haya sido suscrito por el Cliente en beneficio de un usuario final (un "Usuario Final"), y dicho Usuario Final no haya suscrito previamente un contrato independiente con Hyland que rija los Servicios Profesionales prestados en virtud del Documento de Incorporación, se aplicarán los términos de esta Sección.
El Cliente y Hyland reconocen y acuerdan que Hyland presta Servicios profesionales al Cliente en beneficio del Usuario final; por lo tanto, el Cliente (a) declara y garantiza que ha suscrito un contrato vinculante con el Usuario final en relación con el proyecto, en virtud del cual se permite al Cliente contratar a Hyland como subcontratista para prestar los Servicios profesionales contemplados en el presente Contrato; (b) acuerda que la licencia de los Productos de trabajo de la Sección 9. 2 será sublicenciada por el Cliente al Usuario Final, sujeta a las restricciones establecidas en la misma y que, aparte del derecho a sublicenciar los Productos de Trabajo, la licencia de los Productos de Trabajo no se extiende al Cliente; y (c) acepta que hará que el Usuario Final cumpla las disposiciones de este Contrato que son vinculantes para el Cliente como si el Usuario Final fuera una Parte, incluyendo facilitar la cooperación del Usuario Final según lo solicitado por Hyland para proporcionar los Servicios Profesionales y hacer que el Usuario Final cumpla las restricciones y limitaciones contenidas en el presente documento. Además, el Cliente acepta que será responsable del cumplimiento de este Contrato por parte del Usuario final y acepta expresamente indemnizar a Hyland por todas las reclamaciones, responsabilidades, pérdidas, daños y costes, incluidos los honorarios razonables de abogados y las costas judiciales, sufridos o incurridos por Hyland derivados de cualquier incumplimiento por parte del Usuario final de cualquiera de las disposiciones de este Contrato.
17. 11 El Idioma que Controla. Hyland puede poner a disposición otras versiones de estas Condiciones Generales en otros idiomas en esta ubicación en línea. Esta versión en español de estas Condiciones Generales prevalece sobre cualquier versión de estas Condiciones Generales disponible en esta ubicación en línea en otro idioma si el Documento de Incorporación está en español. Si el Documento de Incorporación está redactado en un idioma distinto del español ("Otro Idioma"), pero estas Condiciones Generales no están disponibles en esta ubicación en línea en el Otro idioma, esta versión en español prevalece sobre cualquier otra versión de las Condiciones Generales que pueda estar disponible en esta ubicación en línea en otro idioma.
Anexo A
No Captación; No Contratación
La Sección 15 del Contrato (No Captación; No Contratación) serán los términos establecidos en este Anexo A, basados en la compañía Hyland aplicable que se enumera a continuación:
“Personas Restringidas” significa cualquier persona (i) con la que la parte contratante haya tenido contacto o que haya llegado a ser conocida por la parte contratante en relación con el Contrato; y (ii) que sea o haya sido empleado de la otra parte, en cada caso en cualquier momento durante el empleo de dicha persona por la otra parte o en el plazo de un (1) año después de que dicha persona haya dejado de ser empleado de la otra parte.
Durante la vigencia de este Contrato y durante un (1) año tras la expiración o rescisión del Contrato, ni el Cliente ni Hyland podrá (salvo en la medida en que cualquiera de las partes reciba el consentimiento previo por escrito de la otra parte):
(a) solicitar empleo o contratación como contratista independiente para la parte solicitante o para cualquier otro tercero a una Persona Restringida, o animar o ayudar de cualquier otro modo a dicha Persona Restringida a abandonar el empleo de la otra parte por cualquier motivo, en cada caso en cualquier momento durante el empleo de dicha Persona Restringida por la otra parte o en el plazo de un año (1) después de que dicha persona haya dejado de ser empleada de la otra parte; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona que sea un Individuo Restringido.
(c) Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con la Sección 15(a). Las Partes acuerdan que esta disposición subsiste tras la rescisión del Contrato.
(d) La Sección 15(d) del Contrato serán los términos establecidos a continuación, basados en la compañía de Hyland aplicable que se enumera a continuación:
1. Hyland Software, Inc. Si Hyland es Hyland Software, Inc. (excepto en la medida en que el Cliente esté ubicado en Perú), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, o Hyland Poland Spolka Z.O.O., se aplicarán los siguientes términos como Sección 15(d):
Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de los abogados.
2. Hyland Software Brasil Ltda. Si Hyland es Hyland Software Brasil Ltda, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual a Ciento Noventa Mil Reales (R$190.000,00), y todos los costos asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo pero no limitado a honorarios razonables de abogados.
3. Hyland Software Germany GMBH. Si Hyland es Hyland Software Germany GMBH, se aplicarán los siguientes términos como Sección 15(d): Cada violación culpable de esta disposición por una parte da derecho a la otra a un pago por un importe igual a Cincuenta Mil Euros (50.000,00 €), y todos los costes asociados con el cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
Además, sin perjuicio de cualquier disposición en contrario en el presente documento, la subsección 15(c) anterior será modificada y sustituida en su totalidad de la siguiente manera: Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con las Secciones 15(a) y 15(b). Las Partes acuerdan que esta disposición subsistirá a la terminación del Contrato.
4. Hyland Software Mexico S. de R.L. de C.V. Si Hyland es Hyland Software Mexico S. de R.L. de C.V., los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de abogados.
5. Hyland Switzerland SARL. Si Hyland es Hyland Switzerland SARL, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra a un pago por un importe igual a Cincuenta Mil Francos Suizos (CHF50.000,00), y todos los costes asociados al cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
6. Hyland UK Operations Limited. Si Hyland es Hyland UK Operations Limited los siguientes términos se aplicarán como Sección 15(d):
7. Hyland Software Canada ULC. Si Hyland es Hyland Software Canada ULC, los siguientes términos se aplicarán como Sección 15 del Contrato (No Captación; No Contratación):
Durante la vigencia del presente Contrato, el Cliente no podrá:
(a) solicitar empleo o ser contratado como contratista independiente para sí mismo o para un tercero a una persona que sea empleado de Hyland, ni animar o ayudar de otro modo a dicha persona a abandonar el empleo de Hyland por cualquier motivo; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona: (i) con la que el Cliente haya tenido contacto o que haya llegado a ser conocida por el Cliente en relación con este Contrato; y (ii) que sea empleado de Hyland;
(c) Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del empleado inmediatamente antes de dejar el servicio de la otra parte, y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo, pero no limitado a, los honorarios razonables de abogados. Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con esta Sección 15.
Para cualquier compañía de Hyland a la que no se haga referencia en este Anexo A, no se aplicará la Sección 15 (No Captación; No Contratación).
Anexo B
Ley aplicable; Jurisdicción
La Sección 17.2 del Contrato (Ley aplicable; Jurisdicción) será la establecida en este Anexo B, basada en la compañía Hyland aplicable que se indica a continuación:
siempre y cuando, si Hyland está prestando servicios dentro de los siguientes países, los términos identificados a continuación se aplicarán en lugar de los términos anteriores:
1. Perú. El presente Contrato y cualquier reclamación, acción, pleito, procedimiento o controversia que se derive del mismo se regirán en todos los aspectos por, y se interpretarán de conformidad con, las Leyes sustantivas de la República del Perú, a excepción de los Conflictos de Leyes (y no por la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980, en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. En caso de cualquier controversia en relación con el presente Contrato, incluyendo su interpretación, validez y existencia, dicha controversia se resolverá mediante arbitraje de derecho, bajo las normas del Tribunal Arbitral de la Cámara de Comercio de Lima. El panel arbitral estará conformado por tres árbitros designados de conformidad con dicho reglamento. Cada Parte podrá designar un árbitro y los dos árbitros designados designarán un tercer árbitro que actuará como presidente del panel.
2. Singapur. El presente Contrato y cualquier reclamación, acción, litigio, procedimiento o controversia que se derive del mismo se regirá e interpretará en todos sus aspectos de conformidad con el derecho sustantivo de la República de Singapur (y no con la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980 ni con la Ley Uniforme de Transacciones Informáticas, ambas en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. Los tribunales de Singapur serán los únicos competentes para conocer de cualquier acción, litigio o procedimiento derivado del presente Contrato.
Anexo C
Anexo de Términos Adicionales para Hyland Colombia S.A.S.
Si Hyland es Hyland Colombia S.A.S., se aplicará el presente Anexo C:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo D
Anexo de Términos Adicionales para Hyland Mexico S. de R.L. de C.V.
Si Hyland es Hyland Mexico S. de R.L. de C.V., se aplicará el presente Anexo D:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en el Artículo 1916 del Código Civil Federal Mexicano.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo E
Anexo de Términos Adicionales para Hyland Software, Inc. – Perú
Si Hyland es Hyland Software, Inc., pero Hyland está prestando servicios dentro del país de Perú, se aplicará este Anexo E:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en los artículos 1984 y 1322 del Código Civil.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
(The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.)
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 8th 2022 to June 3rd 2023
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Professional Services Terms for Services Proposals
Terms and Conditions
As of the Effective Date, these Terms and Conditions are part of the Related Agreement entered into between Customer and Service Provider. As used herein: (i) “Related Agreement” means the Services Proposal, Order Form or other agreement entered into between Customer and Service Provider and within which this Schedule 1 is referenced or linked; and (ii) “Agreement” means this Schedule 1, together with the Related Agreement.
1. DEFINED TERMS.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Service Provider, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Service Provider and Customer and each, a “Party”.
“Professional Services” means the services performed by Service Provider under the Related Agreement.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 14 or 15 of this Agreement.
“Service Provider” means Hyland Software, Inc. and/or any of its affiliates that may fulfill any of such entity’s obligations contemplated by this Agreement.
“Software” means Service Provider’s proprietary software products for which Customer has obtained a valid license from Service Provider or one of its authorized solution providers.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Service Provider under the Related Agreement. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts. If Customer does not provide written notice of any objection prior to the invoice date, the applicable invoice will be deemed final and Customer must pay all such amounts in accordance with this Agreement.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Service Provider to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Service Provider will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Service Provider shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Service Provider, and provided that such cause is not an event of force majeure, Service Provider agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Related Agreement that have been performed or developed, in whole or in part, by Service Provider prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO RELATED AGREEMENT. Service Provider or Customer may, at any time, reasonably request a change to the Related Agreement. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Service Provider and signed by both Parties, that specifically references the Related Agreement. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Related Agreement, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Service Provider in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Service Provider is performing services hereunder, Customer shall provide to the Service Provider project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Service Provider’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Service Provider to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Service Provider that Customer has all necessary rights to allow Service Provider to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY SERVICE PROVIDER, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Service Provider employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in this Agreement: (a) Service Provider will charge services fees to Customer for the Professional Services at Service Provider’s then-current standard list price for the applicable Professional Services and (b) Service Provider shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all Undisputed Amounts in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Service Provider for all customary and reasonable out-of-pocket costs and expenses incurred by Service Provider in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Service Provider’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Related Agreement, Service Provider shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Service Provider issues such invoice.
7. CERTAIN REMEDIES FOR NON-PAYMENT OR FOR LATE PAYMENT.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Service Provider’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Service Provider all required receipts and documentation substantiating such payment. If Service Provider is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Service Provider within thirty (30) days after Service Provider notifies Customer in writing of such remittance. Customer agrees to provide Service Provider with valid tax exemption certificates in advance of any remittance otherwise required to be made by Service Provider on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Service Provider or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Service Provider the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Service Provider grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Service Provider products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Service Provider for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Service Provider notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the License Agreement, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Service Provider for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
9.3.1 Form of Delivered Work Products. The form in which Service Provider delivers Work Products will be determined by Service Provider depending on the purpose and functionality of the Work Product.
9.3.2 Configuration Work Products. If Service Provider delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Service Provider grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.3.3 Independent Work Products. If Service Provider delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Service Provider delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Service Provider shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Service Provider of any additional Professional Services fees as Service Provider may charge to prepare and deliver such format. In such case, Service Provider grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Service Provider agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Service Provider: (i) is notified immediately after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Service Provider will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Service Provider) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Service Provider is unable to accomplish either of the options set forth in Section 9.4(iv), Service Provider shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Service Provider shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Service Provider to Customer; (iii) the modification or addition to of the Work Products other than by Service Provider or any of its authorized solution providers specifically retained by Service Provider to provide such modification or addition; or (iv) the Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES SERVICE PROVIDER’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Service Provider warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Service Provider has delivered a completed Work Product to Customer, Service Provider warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Service Provider shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Service Provider’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 9.1 and 9.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Service Provider in writing of the non-conformity, Service Provider will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Service Provider is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Service Provider will refund to Customer any portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. Except as expressly set forth above, Service Provider and its suppliers make no warranties or representations regarding any Work Products, Innovations, information or Professional Services provided under this Agreement. Service Provider and its suppliers disclaim and exclude any and all other express, implied and statutory warranties, including, without limitation, warranties against infringement, the implied warranties of merchantability and fitness for a particular purpose, and warranties that may arise or be deemed to arise from any course of performance, course of dealing or usage of trade. Service Provider and its suppliers do not warrant that any Professional Services or Work Products provided will satisfy Customer’s requirements or are without defect or error, or that the operation of any software or any Work Products provided under this Agreement will be uninterrupted. Except as expressly stated in this Agreement, Service Provider does not assume any liability whatsoever with respect to any third party hardware, firmware, software or services.
11. TERMINATION.
11.1 Generally. Customer or Service Provider may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Service Provider shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Service Provider for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Service Provider has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Service Provider due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF SERVICE PROVIDER, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 SERVICE PROVIDER’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO SERVICE PROVIDER BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER SERVICE PROVIDER NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
13. GENERAL TERMS
13.1 Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 13.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 13.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
13.2 Governing Law and Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of (a) the State of Ohio U.S.A., if the Service Provider is primarily located within the United States or (b) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States (and, in each of (a) or (b), not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in (i) Cuyahoga County, Ohio U.S.A., if the Service Provider is primarily located within the United States or (ii) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States.
13.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect.
13.4 Subcontracting. Service Provider may subcontract all or any part of the Professional Services, provided, that Service Provider shall remain responsible to Customer for the provision of any subcontracted services.
13.5 Independent Contractor. The Parties acknowledge that Service Provider is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
13.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
13.7 Integration. This Agreement sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. To the extent there is a conflict between this Schedule 1 and the Related Agreement, the terms of this Schedule 1 control.
14. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
15. CONFIDENTIAL INFORMATION.
15.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
15.2 Each Party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take all reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Service Provider to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 15 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
15.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
Effective April 18th 2022 to June 8th 2022
DownloadTable of Contents
Schedule 1
Terms and Conditions
As of the Effective Date, these Terms and Conditions are part of the Related Agreement entered into between Customer and Service Provider. As used herein: (i) “Related Agreement” means the Services Proposal, Order Form or other agreement entered into between Customer and Service Provider and within which this Schedule 1 is referenced or linked; and (ii) “Agreement” means this Schedule 1, together with the Related Agreement.
1. DEFINED TERMS.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Service Provider, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Service Provider and Customer and each, a “Party”.
“Professional Services” means the services performed by Service Provider under the Related Agreement.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 14 or 15 of this Agreement.
“Service Provider” means Hyland Software, Inc. and/or any of its affiliates that may fulfill any of such entity’s obligations contemplated by this Agreement.
“Software” means Service Provider’s proprietary software products for which Customer has obtained a valid license from Service Provider or one of its authorized solution providers.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Service Provider under the Related Agreement. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts. If Customer does not provide written notice of any objection prior to the invoice date, the applicable invoice will be deemed final and Customer must pay all such amounts in accordance with this Agreement.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Service Provider to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Service Provider will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Service Provider shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Service Provider, and provided that such cause is not an event of force majeure, Service Provider agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Related Agreement that have been performed or developed, in whole or in part, by Service Provider prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO RELATED AGREEMENT. Service Provider or Customer may, at any time, reasonably request a change to the Related Agreement. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Service Provider and signed by both Parties, that specifically references the Related Agreement. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Related Agreement, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Service Provider in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Service Provider is performing services hereunder, Customer shall provide to the Service Provider project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Service Provider’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Service Provider to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Service Provider that Customer has all necessary rights to allow Service Provider to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY SERVICE PROVIDER, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Service Provider employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in this Agreement: (a) Service Provider will charge services fees to Customer for the Professional Services at Service Provider’s then-current standard list price for the applicable Professional Services and (b) Service Provider shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all Undisputed Amounts in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Service Provider for all customary and reasonable out-of-pocket costs and expenses incurred by Service Provider in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Service Provider’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Related Agreement, Service Provider shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Service Provider issues such invoice.
7. CERTAIN REMEDIES FOR NON-PAYMENT OR FOR LATE PAYMENT.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Service Provider’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Service Provider all required receipts and documentation substantiating such payment. If Service Provider is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Service Provider within thirty (30) days after Service Provider notifies Customer in writing of such remittance. Customer agrees to provide Service Provider with valid tax exemption certificates in advance of any remittance otherwise required to be made by Service Provider on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Service Provider or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Service Provider the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Service Provider grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Service Provider products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Service Provider for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Service Provider notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the License Agreement, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Service Provider for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
9.3.1 Form of Delivered Work Products. The form in which Service Provider delivers Work Products will be determined by Service Provider depending on the purpose and functionality of the Work Product.
9.3.2 Configuration Work Products. If Service Provider delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Service Provider grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.3.3 Independent Work Products. If Service Provider delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Service Provider delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Service Provider shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Service Provider of any additional Professional Services fees as Service Provider may charge to prepare and deliver such format. In such case, Service Provider grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Service Provider agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Service Provider: (i) is notified immediately after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Service Provider will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Service Provider) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Service Provider is unable to accomplish either of the options set forth in Section 9.4(iv), Service Provider shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Service Provider shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Service Provider to Customer; (iii) the modification or addition to of the Work Products other than by Service Provider or any of its authorized solution providers specifically retained by Service Provider to provide such modification or addition; or (iv) the Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES SERVICE PROVIDER’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Service Provider warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Service Provider has delivered a completed Work Product to Customer, Service Provider warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Service Provider shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Service Provider’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 9.1 and 9.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Service Provider in writing of the non-conformity, Service Provider will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Service Provider is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Service Provider will refund to Customer any portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. Except as expressly set forth above, Service Provider and its suppliers make no warranties or representations regarding any Work Products, Innovations, information or Professional Services provided under this Agreement. Service Provider and its suppliers disclaim and exclude any and all other express, implied and statutory warranties, including, without limitation, warranties against infringement, the implied warranties of merchantability and fitness for a particular purpose, and warranties that may arise or be deemed to arise from any course of performance, course of dealing or usage of trade. Service Provider and its suppliers do not warrant that any Professional Services or Work Products provided will satisfy Customer’s requirements or are without defect or error, or that the operation of any software or any Work Products provided under this Agreement will be uninterrupted. Except as expressly stated in this Agreement, Service Provider does not assume any liability whatsoever with respect to any third party hardware, firmware, software or services.
11. TERMINATION.
11.1 Generally. Customer or Service Provider may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Service Provider shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Service Provider for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Service Provider has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Service Provider due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF SERVICE PROVIDER, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 SERVICE PROVIDER’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO SERVICE PROVIDER BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER SERVICE PROVIDER NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
13. GENERAL TERMS
13.1 Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 13.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 13.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
13.2 Governing Law and Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of (a) the State of Ohio U.S.A., if the Service Provider is primarily located within the United States or (b) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States (and, in each of (a) or (b), not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in (i) Cuyahoga County, Ohio U.S.A., if the Service Provider is primarily located within the United States or (ii) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States.
13.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect.
13.4 Subcontracting. Service Provider may subcontract all or any part of the Professional Services, provided, that Service Provider shall remain responsible to Customer for the provision of any subcontracted services.
13.5 Independent Contractor. The Parties acknowledge that Service Provider is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
13.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
13.7 Integration. This Agreement sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. To the extent there is a conflict between this Schedule 1 and the Related Agreement, the terms of this Schedule 1 control.
14. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
15. CONFIDENTIAL INFORMATION.
15.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
15.2 Each Party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take all reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Service Provider to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 15 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
15.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
Effective April 14th 2022 to April 18th 2022
DownloadTable of Contents
Schedule 1
Terms and Conditions
As of the Effective Date, these Terms and Conditions are part of the Services Proposal entered into between Customer and Service Provider. As used herein: (i) “Related Agreement” means the Services Proposal, Order Form or other agreement entered into between Customer and Service Provider and within which this Schedule 1 is referenced or linked; and (ii) “Agreement” means this Schedule 1, together with the Related Agreement.
1. DEFINED TERMS.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Service Provider, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Service Provider and Customer and each, a “Party”.
“Professional Services” means the services performed by Service Provider under the Related Agreement.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 14 or 15 of this Agreement.
“Service Provider” means Hyland Software, Inc. and/or any of its affiliates that may fulfill any of such entity’s obligations contemplated by this Agreement.
“Software” means Service Provider’s proprietary software products for which Customer has obtained a valid license from Service Provider or one of its authorized solution providers.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Service Provider under the Related Agreement. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts. If Customer does not provide written notice of any objection prior to the invoice date, the applicable invoice will be deemed final and Customer must pay all such amounts in accordance with this Agreement.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Service Provider to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Service Provider will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Service Provider shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Service Provider, and provided that such cause is not an event of force majeure, Service Provider agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Related Agreement that have been performed or developed, in whole or in part, by Service Provider prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO SERVICES PROPOSAL. Service Provider or Customer may, at any time, reasonably request a change to the Related Agreement. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Service Provider and signed by both Parties, that specifically references the Related Agreement. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Related Agreement, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Service Provider in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Service Provider is performing services hereunder, Customer shall provide to the Service Provider project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Service Provider’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Service Provider to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Service Provider that Customer has all necessary rights to allow Service Provider to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY SERVICE PROVIDER, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Service Provider employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in this Agreement: (a) Service Provider will charge services fees to Customer for the Professional Services at Service Provider’s then-current standard list price for the applicable Professional Services and (b) Service Provider shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all Undisputed Amounts in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Service Provider for all customary and reasonable out-of-pocket costs and expenses incurred by Service Provider in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Service Provider’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Related Agreement, Service Provider shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Service Provider issues such invoice.
7. CERTAIN REMEDIES FOR NON-PAYMENT OR FOR LATE PAYMENT.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Service Provider’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Service Provider all required receipts and documentation substantiating such payment. If Service Provider is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Service Provider within thirty (30) days after Service Provider notifies Customer in writing of such remittance. Customer agrees to provide Service Provider with valid tax exemption certificates in advance of any remittance otherwise required to be made by Service Provider on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Service Provider or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Service Provider the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Service Provider grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Service Provider products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Service Provider for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Service Provider notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the License Agreement, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Service Provider for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
9.3.1 Form of Delivered Work Products. The form in which Service Provider delivers Work Products will be determined by Service Provider depending on the purpose and functionality of the Work Product.
9.3.2 Configuration Work Products. If Service Provider delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Service Provider grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.3.3 Independent Work Products. If Service Provider delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Service Provider delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Service Provider shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Service Provider of any additional Professional Services fees as Service Provider may charge to prepare and deliver such format. In such case, Service Provider grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Service Provider agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Service Provider: (i) is notified immediately after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Service Provider will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Service Provider) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Service Provider is unable to accomplish either of the options set forth in Section 9.4(iv), Service Provider shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Service Provider shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Service Provider to Customer; (iii) the modification or addition to of the Work Products other than by Service Provider or any of its authorized solution providers specifically retained by Service Provider to provide such modification or addition; or (iv) the Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES SERVICE PROVIDER’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Service Provider warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Service Provider has delivered a completed Work Product to Customer, Service Provider warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Service Provider shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Service Provider’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 9.1 and 9.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Service Provider in writing of the non-conformity, Service Provider will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Service Provider is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Service Provider will refund to Customer any portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. Except as expressly set forth above, Service Provider and its suppliers make no warranties or representations regarding any Work Products, Innovations, information or Professional Services provided under this Agreement. Service Provider and its suppliers disclaim and exclude any and all other express, implied and statutory warranties, including, without limitation, warranties against infringement, the implied warranties of merchantability and fitness for a particular purpose, and warranties that may arise or be deemed to arise from any course of performance, course of dealing or usage of trade. Service Provider and its suppliers do not warrant that any Professional Services or Work Products provided will satisfy Customer’s requirements or are without defect or error, or that the operation of any software or any Work Products provided under this Agreement will be uninterrupted. Except as expressly stated in this Agreement, Service Provider does not assume any liability whatsoever with respect to any third party hardware, firmware, software or services.
11. TERMINATION.
11.1 Generally. Customer or Service Provider may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Service Provider shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Service Provider for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Service Provider has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Service Provider due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF SERVICE PROVIDER, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 SERVICE PROVIDER’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO SERVICE PROVIDER BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER SERVICE PROVIDER NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
13. GENERAL TERMS
13.1 Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 13.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 13.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
13.2 Governing Law and Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of (a) the State of Ohio U.S.A., if the Service Provider is primarily located within the United States or (b) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States (and, in each of (a) or (b), not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in (i) Cuyahoga County, Ohio U.S.A., if the Service Provider is primarily located within the United States or (ii) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States.
13.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect.
13.4 Subcontracting. Service Provider may subcontract all or any part of the Professional Services, provided, that Service Provider shall remain responsible to Customer for the provision of any subcontracted services.
13.5 Independent Contractor. The Parties acknowledge that Service Provider is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
13.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
13.7 Integration. This Agreement sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. To the extent there is a conflict between this Schedule 1 and the Related Agreement, the terms of this Schedule 1 control.
14. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
15. CONFIDENTIAL INFORMATION.
15.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
15.2 Each Party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take all reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Service Provider to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 15 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
15.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
Effective April 14th 2022 to April 14th 2022
DownloadTable of Contents
Schedule 1
Terms and Conditions
As of the Effective Date, these Terms and Conditions are part of the Services Proposal entered into between Customer and Service Provider. As used herein: (i) “Related Agreement” means the Services Proposal, Order Form or other agreement entered into between Customer and Service Provider and within which this Schedule 1 is referenced or linked; and (ii) “Agreement” means this Schedule 1, together with the Related Agreement.
1. DEFINED TERMS.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Service Provider, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Service Provider and Customer and each, a “Party”.
“Professional Services” means the services performed by Service Provider under the Related Agreement.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 14 or 15 of this Agreement.
“Service Provider” means Hyland Software, Inc. and/or any of its affiliates that may fulfill any of such entity’s obligations contemplated by this Agreement.
“Software” means Service Provider’s proprietary software products for which Customer has obtained a valid license from Service Provider or one of its authorized solution providers.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Service Provider under the Related Agreement. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Service Provider, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts. If Customer does not provide written notice of any objection prior to the invoice date, the applicable invoice will be deemed final and Customer must pay all such amounts in accordance with this Agreement.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Service Provider, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Service Provider to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Service Provider will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Service Provider shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Service Provider, and provided that such cause is not an event of force majeure, Service Provider agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Related Agreement that have been performed or developed, in whole or in part, by Service Provider prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO SERVICES PROPOSAL. Service Provider or Customer may, at any time, reasonably request a change to the Related Agreement. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Service Provider and signed by both Parties, that specifically references the Related Agreement. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Related Agreement, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Service Provider in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Service Provider is performing services hereunder, Customer shall provide to the Service Provider project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Service Provider’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Service Provider to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Service Provider that Customer has all necessary rights to allow Service Provider to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY SERVICE PROVIDER, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Service Provider employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in this Agreement: (a) Service Provider will charge services fees to Customer for the Professional Services at Service Provider’s then-current standard list price for the applicable Professional Services and (b) Service Provider shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all Undisputed Amounts in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Service Provider for all customary and reasonable out-of-pocket costs and expenses incurred by Service Provider in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Service Provider’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Related Agreement, Service Provider shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Service Provider issues such invoice.
7. CERTAIN REMEDIES FOR NON-PAYMENT OR FOR LATE PAYMENT.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Service Provider’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Service Provider all required receipts and documentation substantiating such payment. If Service Provider is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Service Provider within thirty (30) days after Service Provider notifies Customer in writing of such remittance. Customer agrees to provide Service Provider with valid tax exemption certificates in advance of any remittance otherwise required to be made by Service Provider on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Service Provider or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Service Provider the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Service Provider grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Service Provider products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Service Provider for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Service Provider notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the License Agreement, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Service Provider for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
9.3.1 Form of Delivered Work Products. The form in which Service Provider delivers Work Products will be determined by Service Provider depending on the purpose and functionality of the Work Product.
9.3.2 Configuration Work Products. If Service Provider delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Service Provider grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.3.3 Independent Work Products. If Service Provider delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Service Provider delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Service Provider shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable the Customer to complete its modifications, subject to and upon the payment by Customer to Service Provider of any additional Professional Services fees as Service Provider may charge to prepare and deliver such format. In such case, Service Provider grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Service Provider agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Service Provider: (i) is notified immediately after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Service Provider will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Service Provider) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Service Provider is unable to accomplish either of the options set forth in Section 9.4(iv), Service Provider shall remove the infringing portion of the Work Products and refund to Customer the full services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Service Provider shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Service Provider to Customer; (iii) the modification or addition to of the Work Products other than by Service Provider or any of its authorized solution providers specifically retained by Service Provider to provide such modification or addition; or (iv) the Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES SERVICE PROVIDER’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Service Provider warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Service Provider has delivered a completed Work Product to Customer, Service Provider warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Service Provider shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Service Provider’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 9.1 and 9.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Service Provider in writing of the non-conformity, Service Provider will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Service Provider is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Service Provider will refund to Customer any portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. Except as expressly set forth above, Service Provider and its suppliers make no warranties or representations regarding any Work Products, Innovations, information or Professional Services provided under this Agreement. Service Provider and its suppliers disclaim and exclude any and all other express, implied and statutory warranties, including, without limitation, warranties against infringement, the implied warranties of merchantability and fitness for a particular purpose, and warranties that may arise or be deemed to arise from any course of performance, course of dealing or usage of trade. Service Provider and its suppliers do not warrant that any Professional Services or Work Products provided will satisfy Customer’s requirements or are without defect or error, or that the operation of any software or any Work Products provided under this Agreement will be uninterrupted. Except as expressly stated in this Agreement, Service Provider does not assume any liability whatsoever with respect to any third party hardware, firmware, software or services.
11. TERMINATION.
11.1 Generally. Customer or Service Provider may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Service Provider shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Service Provider for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Service Provider has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Service Provider due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF SERVICE PROVIDER, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 SERVICE PROVIDER’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO SERVICE PROVIDER BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER SERVICE PROVIDER NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
13. GENERAL TERMS
13.1 Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 13.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 13.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
13.2 Governing Law and Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of (a) the State of Ohio U.S.A., if the Service Provider is primarily located within the United States or (b) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States (and, in each of (a) or (b), not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in (i) Cuyahoga County, Ohio U.S.A., if the Service Provider is primarily located within the United States or (ii) the country in which the Service Provider was incorporated or organized, as applicable, if the Service Provider is primarily located outside of the United States.
13.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect.
13.4 Subcontracting. Service Provider may subcontract all or any part of the Professional Services, provided, that Service Provider shall remain responsible to Customer for the provision of any subcontracted services.
13.5 Independent Contractor. The Parties acknowledge that Service Provider is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
13.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
13.7 Integration. This Agreement sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. To the extent there is a conflict between this Schedule 1 and the Related Agreement, the terms of this Schedule 1 control.
14. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
15. CONFIDENTIAL INFORMATION.
15.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
15.2 Each Party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take all reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Service Provider to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 15 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
15.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
Managed Services Schedule
Effective November 30th 2022
DownloadTable of Contents
- The Managed Services shall be specific to Customer’s existing Software solution(s);
- Managed Services will support the number of products and environments noted on the Order Form. Hyland’s involvement may range from owning specific tasks to consultation only;
- All services will be performed remotely;
- Services will be provided in English only;
- Services will be provided during Standard Business Hours defined as 8:00 a.m. to 6:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location; and
- Resources assigned to perform the Services may be employees or agents (including third party contractors) of Hyland Software, Inc. or its’ subsidiaries located in other countries. Such resources may have access to Customer’s data and Customer consents to such access and, to the extent applicable, waives any restrictions in the Underlying Agreement (as defined in the Order Form, if applicable) prohibiting the use of such resources or access to Customer’s data as needed to perform the Services.
Operate | Enhance | Expand | |
Defined Service Level Objectives (SLOs) | Included | Included | Included |
Service Desk | General | Designated | Designated |
Service Delivery Manager | Designated | Designated | Designated |
Monthly Activity Report | Included | Included | Included |
Administration | Included | Included | Included |
Configuration Management Database Document | Included | Included | Included |
Solution Design Documentation | Included | Included | Included |
Quarterly Sponsor Review | Included | Included | |
Long-Term Release Management | Included | Included | |
Strategic Workshop | Included | Included | |
Expansion Management | Included | ||
Incident | Review Response Resolution | Review Response Resolution | Review Response Resolution |
Change | Review Response | Review Response Resolution | Review Response Resolution |
Release | Review Response | Review Response Resolution | Review Response Resolution |
Problem | Review | Review Response Resolution | Response Resolution |
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Customer is aware that Managed Services are intended to assist with specific requests for assistance, and shall not be used to support in-depth or ongoing project activities, unless planned for in advance and mutually agreed in writing. Requests for Professional Services that do not constitute Managed Services shall be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Project Change Control Process described below; and
- Customer understands Managed Services are intended to supplement Customer’s needs beyond standard technical support.
- Consultation, expertise and/or support of third party software or hardware;
- Services to support Customer end users (including, but not limited to, manual password resets, taking support calls from users, end user training), unless otherwise agreed to by Hyland.
- Replacement for general Technical Support or Cloud Product Engineering Support;
- Custom scripted elements and custom development, unless Customer has purchased the Custom Scripting Enhancement/Development Add-On;
- Direct database modifications; and
- Full project management and delivery utilizing Hyland’s formal project methodology in any form.
- Customers shall communicate Service Requests and/or Change Requests to the Service Desk by opening an “Issue” via the Hyland Community Customer Project Portal;
- Unless explicitly identified, all Service Requests and Change Requests must be reported directly to the Service Desk and cannot be communicated through any indirect means. Any indirect communicated Service Requests and Change Requests are not subject to the obligations as defined in the Service Level Objectives;
- Customer is responsible for proposing Issue severity level classification upon submission, which may be modified by Hyland after review;
- Customer personnel who contact the Service Desk must be authorized by the Service Delivery Manager and qualified to interact on a technical basis at a level required to support the existing Hyland solution. The Service Desk will not respond to requests from non-authorized personnel.
- Hyland will determine whether the request submitted constitutes a Service Request or a Change Request.
- If the request is determined to be a Change Request, then:
- If Customer has subscribed for the Operate service level, Hyland will provide general consulting in relation to business requirements or use cases, including suggested module usage to satisfy a business requirement or use case, training in module configuration to qualified individuals (such as a designated System Administrator) and suggested software configuration to satisfy a business requirement or use case; however, Hyland will not perform configuration tasks, testing or migration to production. General consultation relating to Change Requests will be limited to fifty (50) instances per twelve-month period.
- If Customer has subscribed for the Enhance or Expand service level, Hyland will provide the services described below under “Enhance/Expand Chang Requests.”
- If the request is determined to be a Change Request, then:
- Resolution for Service Requests and Change Requests are as follows:
- Service Request resolution activity will be performed by Hyland and Customer at a mutually agreed upon time upon Review and Response of the Service Request;
- Any Change Request for off-hours maintenance windows, extended involvement such as blocks of time of eight (8) hours or more, or other activities requested to be performed by Hyland, are subject to Hyland review and must be requested and scheduled 72 hours in advance.
- Customer must respond to the Hyland Service Desk in a timely manner for the purposes of resolving an open issue. If Customer fails to respond after two (2) attempts by Hyland to contact and coordinate with Customer, within a seventy-two (72) hour period, Hyland will close the case.
- Hyland will evaluate all Change Requests to determine the work effort associated with the request. Based upon the anticipated work involved, Customer may elect to have Hyland perform services to affect the Change, or consultation services only. Customer’s ability to receive consultation services related to a Change Request shall not be restricted; however, Customer will be limited to fifty (50) elective service engagements in response to Change Requests per twelve (12) month period, to be managed in the following manner:
- Customer will receive an “account balance” of fifty (50) elective service engagements. All Change Requests for which active services are requested will be charged a minimum of one (1) active service engagement;
- Elective service engagements will be deducted from Customer’s balance when the Response is provided by Hyland;
- Hyland reserves the right to charge multiple elective service engagements from the account balance for requests which encompass multiple component changes (and will advise Customer of the number of elective service engagements to be charged, if applicable);
- Provided Customer’s elective service engagement balance is sufficient (or Customer purchases additional Change Requests, if required), and subject to (iii) below, Hyland will perform the work required to address the Change Request. If Customer’s elective service engagement balance is insufficient, Hyland will perform only consultation services relating to the Change Request (subject to Customer’s election to purchase additional Change Requests);
- Notwithstanding the foregoing, Hyland reserves the right to require a separate Professional Services engagement for requested changes which are determined to require work which is not typically addressed by the managed services delivery team (such as Software conversions or implementations);
- Customer will receive an “account balance” of fifty (50) elective service engagements. All Change Requests for which active services are requested will be charged a minimum of one (1) active service engagement;
- Unused elective service engagements will not be rolled over into any subsequent period or renewal term
- In a single month, Customer may request active services relating to Change Requests that total no more than twenty-five (25) percent of the total annual elective service engagement allotment;
- Elective service engagements are scheduled services subject to mutually agreed upon timelines;
- Hyland will prioritize all elective service engagements received from the Customer and will determine the order of changes to be scheduled and completed;
- Hyland will provide a monthly report of elective service engagement information that will include the following information:
- Opening balance
- Credits
- Debits
- Remaining balance
- Hyland will make reasonable efforts to respond to emergency Change Requests as priority requests, utilizing available resources on an as-needed basis, which may be different from normally designated resources;
- Customer is responsible to provide sufficient business requirements and/or use cases in order for Hyland to perform Change Requests. Hyland reserves the right to close Change Requests if insufficient details are provided by the Customer or Customer is non-responsive to requests from Hyland for additional information or participation; and
- Hyland will train qualified, designated representatives from the Customer on newly deployed functionality. However, it is the responsibility for the Customer to train all end-users.
Definition | Service Level Objective (SLO) | ||
System Outage | The primary business function is stopped with no redundancy or backup. Deemed as an error that causes total or substantial Software failure, which means the Software is down and Customer is unable to access the Software in any way within their production environment. | Additional Description | Customer is responsible to submit a Technical Support Case via Hyland Community or contacting Technical Support: |
Service Level Credit | Not applicable | ||
Service Request | Request by Customer relating to routine day-to-day tasks or Incidents which are not defined as System Outages. Service Desk will begin Review of Service Requests within one (1) hour of reported impact during Standard Business Hours. If reported off-hours, the Service Desk will begin actively working within one (1) hour of the next business day. Hyland and the Customer will commit the necessary resources to resolve the situation within Standard Business Hours. There are no limitations on the number of Service Requests submitted during the Term. | Measurement Window | One (1) Month |
Expected Service Level | Less than one (1) cumulative miss (Review) in each measurement window | ||
Minimum Service Level | Less than five (5) cumulative misses (Review) in each measurement window | ||
Calculation | The actual number of Service Requests that have a Review time greater than one (1) hour in each calendar month. | ||
Additional Description | Service Requests, as recorded by Hyland, are used to determine the number of Service Requests responded to. | ||
Service Level Credit | Seven (7) percent of monthly contract value. | ||
Characteristic | Definition | Service Level Objective (SLO) | |
Change Request | Request by Customer for any addition (installation), modification or removal of anything that has an effect on existing Software or solutions. Changes are categorized based on type of Change Requests. Service Desk will begin Review of the submitted Customer Change Request within one (1) business day, during Standard Business Hours If reported off-hours, the Service Desk will begin actively working the next business day. | Measurement Window | One (1) Month |
Expected Service Level | Less than one (1) cumulative miss (Review) in each measurement window | ||
Minimum Service Level | Three (3) cumulative misses (Review) in each measurement window | ||
Calculation | The actual number of Change Requests that have a Review time greater than one (1) business day, during normal business hours in each calendar month. | ||
Additional Description | Change Requests as recorded by Hyland are used to determine the number of changes in each calendar month. Requests created missing pertinent information to complete the change will be closed or excluded from the calculation. | ||
Service Level Credit | Five (5) percent of monthly contract value. | ||
- Enforcement of SLOs will begin ninety (90) days from the Subscription Start Date as indicated on the Order Form;
- Hyland will measure and report performance of the SLOs and Hyland’s performance against SLOs on a monthly basis;
- Customer acknowledges and agrees that Service Level Credits shall be deemed the sole and exclusive remedy for Customer in connection with failure to meet any Service Level, and that Service Level Credits shall not be deemed to be payment for any damages or loss; rather they shall be used solely as credits to offset fees due to Hyland;
- Service Level Credits will be paid as a credit against Hyland’s then current invoice to Customer during the next billing cycle after which the associated Service Level failure occurred;
- Service Level Credits may not be combined with any potential future Service Level Credits;
- Service Level Credits cannot be carried forward into renewal terms;
- Customer must notify Hyland in writing within thirty (30) days following the end of the month during which the services were provided stating the amount of service fees Customer has requested to be credited;
- Any credit paid by Hyland to Customer (up to the limits stated above) applies only to the next billing cycle and will constitute Customer’s sole and exclusive remedy;
- Any Service Level failure due to any of the exclusions listed below shall not be included in the measurement of Hyland’s performance against the applicable Service Level:
- Scheduled maintenance windows, critical maintenance and customer requested maintenance downtime for the impacted services; and
- Any event outside of Hyland’s control, including but not limited to the following events:
- Emergency maintenance activities approved by Customer;
- Work performed specifically at Customer’s request and direction which directly impacts the availability of the Service;
- Problems with Customer’s infrastructure, applications, and/or data either provided by the Customer or provided by the Customer’s vendors; and
- Lack of availability or untimely response time of Customer to respond or assist to incidents that require its participation for source identification and/or resolution, including meeting Customer’s responsibilities for any prerequisite services or failure of Customer to provide appropriate maintenance on components.
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary;
- The sponsor/manager will manage all customer obligations as defined within this Services Proposal; and
- The sponsor/manager will coordinate all key departmental decision makers, technical experts, subject matter experts, end user representatives and third party software application resources.
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment; typically, the resource requesting assistance will be the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Services Proposal;
- Customer personnel contacting the Service Desk must be authorized to do so by the Service Delivery Manager, and qualified to interact on a technical basis at a level required to support the Software solution; and
- Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software.
- Customer will provide access and privileges to Hyland resources enabling full administration of the software and solution, including installation of software, configuration modifications, and modification of server and OS settings;
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer’s environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- For on-premises Customers, this includes.
- Local and remote VPN access must be provided to applicable Hyland resources through the use of dedicated user account(s) with appropriate privileges to the Software and/or relevant third party applications; and
- Access must be provided prior to Hyland’s arrival at Customer facilities and/or project discovery sessions.
- For on-premises Customers, this includes.
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go- live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
Services | Description |
Service Desk | Responsible for coordinating the management of Service Requests and Change Requests created by the Customer. Such resources that Hyland, in its direction provides to Customer may be designated but not dedicated solely to the Customer and may change based on general resource availability. Customer will initiate any such Service Requests and Change Requests to Hyland via Hyland Community. |
Service Delivery Manager | Primary Hyland resource responsible for overseeing the successful delivery of Managed Services. Primary responsibilities include:
|
Monthly Activity Report | Means reporting services, which Hyland will provide, including:
|
Administration | Means services provided under the direction and supervision of the Customer, which may include:
|
Configuration Management Database Document | Document describing database used by Hyland to store information about hardware and software assets to ensure consistency in configuration management and shared knowledge of Customer’s Software solution. |
Solution Design Documentation | Documentation used in maintaining information pertaining to the design of the Customer’s Software solution. Hyland is responsible for maintaining updated Solution Design Documentation based on changes made to Customer’s solution. |
Quarterly Sponsor Review | Every ninety (90) days Hyland will conduct a review with sponsors from each organization to maintain alignment around key metrics and assess customer experience. This ongoing and collaborative review is intended to allow concerns and feedback to be heard early and often, allowing time for any necessary corrective actions. |
Long-Term Release (LTR) Management | A designation given to certain Enhancement Packs (EP), generally once per year, to identify the builds Hyland will support for the longest duration according to Hyland’s Technical Support policies. EPs generally include enhancements, fixes and security updates provided to Customers multiple times per year. Within Managed Services, Customer has access to use Managed Services for one (1) LTR Release annually for the number of products defined in the Order Form, using Hyland’s recommended approach through Managed Services. |
Strategic Workshop | Provides one (1) annual engagement designed to help Customer discover the top priorities and deliver a 12-month action plan to achieve quick wins that may drive changes to the Software solution. |
Expansion Management | Provides Customer the ability to expand the existing Software solution beyond the scope of the existing business process, delivered by a Hyland resource(s). This includes the ability to implement one (1) expansion workstream. Such services shall consist of technical work only, using existing Software based configuration, and shall exclude any custom development or scripting. These services shall be governed by Customer’s project management. |
Incident | Is defined as an unplanned interruption to Software or solution or reduction in the quality of the Software. For the purposes of Managed Services, Incidents are defined as System Outages or a Service Request which:
|
Problem | Is defined as a cause, or potential cause, of one or more Issues. Hyland will perform a quarterly review of historical Issues to support the identification of underlying causes of issues through in-depth investigation. This focuses on root cause analysis and review of recurring Issues to improve outcomes and performance. |
Change | Changes are any addition (installation), modification or removal of anything that has an effect on existing Software or solutions. Changes are:
For any requested Changes, Customer is responsible to submit a Change Request via Hyland Community as an Issue. |
Release | Management of incremental software, documentation, processes or other component upgrades required to move from one software component version to another. As part of any Release update process, the Service Desk will review the impact and urgency to the Customer against the existing Software solution. Component Software updates that are Customer requests for the purpose of obtaining additional features or functions are considered discretionary and are handled as a Change. Component software updates to remediate Service Requests are handled as part of Incident Resolution. |
Review | An evaluation of an Incident, Problem, Change or Release created by Customer and sent to Hyland for review and comment. The purpose of a Review is to evaluate a component and propose a Response for potential resolution or closure. |
Response | Hyland actively engages in identifying root cause and makes recommendation(s) for how to correct. |
Resolution | Hyland receives/produces a response resolution plan and acts to implement said response. A Resolution is complete when functionality is materially restored, or a recommendation is made to the Customer to remediate a Service Request or Change Request. If a configuration change is required to resolve an issue or implement a Change, the Service Desk will follow the change management practices established with the Customer. |
Add-Ons Available |
Custom Script Enhancement(s) and/or Development Blocks |
Additional Change Request Blocks |
24/7 Extended Coverage |
Offshore Exclusion |
- Customer will be entitled to a quantity of Custom Script Enhancement(s)/ Development Requests designated by Hyland for use during the Initial Term (with each quantity, as specified on the Order Form, being comprised of five requests), which will be managed in the following manner:
- All Custom Script Enhancement(s)/Development Requests will be charged a minimum of one (1) change per request;
- Unused Custom Script Enhancement(s)/Development Requests will not be rolled over into any subsequent period or renewal term;
- Hyland will evaluate all Custom Script Enhancement(s)/Development Requests to determine work effort associated with the request;
- Hyland reserves the right to charge multiple change requests from the account balance for requests which encompass multiple component changes;
- Hyland reserves the right to recommend a separate Professional Services engagement for requested changes which are determined to exceed the available balance of change requests for work which are not typically addressed by the managed services delivery team (such as Software conversions);
- In a single month, Customer may submit Custom Script Enhancement(s)/Development Requests that total no more than twenty-five (25) percent of the total annual Custom Script Enhancement(s)/Development request allotment;
- Custom Script Enhancement(s)/Development Requests are scheduled services with mutually agreed upon timelines;
- Hyland will prioritize all Custom Script Enhancement(s)/Development Requests received from the Customer and will determine the order of changes to be scheduled and completed;
- Hyland will provide a monthly report of Custom Script Enhancement(s)/Development Request information that will include the following information:
- Opening balance
- Credits
- Debits
- Remaining balance
- Hyland will make reasonable efforts to respond to Emergency Custom Script Enhancement(s)/Development Requests as priority requests, utilizing available resources on an as-needed basis, which may be different from normally designated resources;
- Customer is responsible to provide sufficient business requirements and/or use cases in order for Hyland to perform Custom Script Enhancement(s)/Development Requests. Hyland reserves the right to close Custom Script Enhancement(s)/Development Requests if insufficient details are provided by the Customer or Customer is non-responsive to requests from Hyland for additional information or participation;
- Hyland will train qualified, designated representatives from the Customer on newly deployed functionality. However, it is the responsibility for the Customer to train all end-users.
Effective May 10th 2022 to November 30th 2022
DownloadTable of Contents
Managed Services; Add-On Managed Services
- The Managed Services shall be specific to Customer’s existing Software solution(s).
- Managed Services will support the number of products and environments noted on the Order Form.
- Hyland’s involvement may range owning specific tasks to consultation only.
- All services will be performed off-site, remotely.
- Services will be provided in English only.
- Standard Business Hours are defined as 8:00 a.m. to 6:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location
Please reference the Order Form for a description of the service level offering selected for purchase.
Services | Operate | Enhance | Expand |
|---|---|---|---|
| Defined Service Level Objectives (SLOs) | Included | Included | Included |
Service Desk | General | Designated | Designated |
Service Delivery Manager | Designated | Designated | Designated |
Monthly Activity Report | Included | Included | Included |
Administration | Included | Included | Included |
Configuration Management Database | Included | Included | Included |
Solution Design Documentation | Included | Included | Included |
Quarterly Business Review | Included | Included | |
Long-Term Release Management | Included | Included | |
Strategic Workshop | Included | Included | |
Expansion Management | Included | ||
Incident | Review Response Resolution | Review Response Resolution | Review Response Resolution |
Change | Review Response | Review Response Resolution | Review Response Resolution |
Release | Review Response | Review Response Resolution | Review Response Resolution |
Problem | Review | Review Response Resolution | Review Response Resolution |
Assumptions
- Some resources assigned to perform the Professional Services may be employees of Hyland Software, Inc.’s subsidiaries located in other countries;
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Reference to business day equates to standard workweek of Monday through Friday;
- Customer is aware that Managed Services are intended to assist with specific requests for assistance, and shall not be used to support in-depth or ongoing project activities, unless planned for in advance and mutually agreed in writing. Requests for Professional Services that do not constitute Managed Services shall be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Project Change Control Process described below; and
- Customer understands Managed Services are intended to supplement Customer’s needs beyond standard technical support. General Software related questions, such as requests for downloads, documentation, or to report issues, will be subject to follow standard technical support.
Exclusions
The following items are not covered under Managed Services:
- Consultation, expertise and/or support of third-party software or hardware;
- Services to support Customer end users (including, but not limited to, manual password resets, taking support calls from users, end user training), unless otherwise agreed to by Hyland.
- Replacement for general Technical Support or Global Cloud Services Support;
- Custom scripted elements and custom development, unless Customer has purchased the Custom Scripting Enhancement/Development Add-On;
- Direct database modifications;
- Full project lifecycle management; and
- Full project delivery utilizing Hyland’s formal project methodology in any form.
Service Initiation and Sample Timeline
Promptly following the beginning of the Initial Term, Hyland will perform the following services to prepare for full-service activation.
The following is provided as a recommended timeline and approach for planning purposes only:
- Week one (1) of service:
- Hyland will provide a Service Delivery Manager to conduct an initial kickoff with Customer to review the selected Managed Services;
- Hyland and Customer will review guidelines and complete the Managed Services Runbook as part of service activation. These activities include:
- Review the roles and responsibilities of Customer and Hyland;
- Review with Customer Managed Services engagement practices;
- Identify responsible Customer personnel, including who is authorized to request and/or approve changes, and utilize services described herein;
- Weeks two (2) to four (4) of service:
- Review Change and Release practices;
- Review access and security policies, and/or other Customer considerations;
- Review how to contact Hyland for assistance and escalation processes;
- Review requirements for connection to Customer’s Software solution by Hyland;
- Review standard notification procedures;
- Review Customer’s current environment and solution configuration to gain understanding of existing Software solution;
- Introduce Customer to, and begin constructing the Runbook and Solution Design Documentation (SDD);
- Hyland and Customer continue building Runbook and SDD for purposes of storing in the Configuration Management Database (CMDB);
- Initial draft of Runbook and SDD should be complete by end of week four (4);
- If Enhance or Expand, Hyland works with the customer to schedule and plan for a Strategic Workshop;
- Weeks five (5) to six (6) of service:
- Complete the Runbook, SDD and CMDB;
- Hyland will also provide customer access to a Hyland provided and maintained Configuration Management Database (CMDB) platform.
- Weeks seven (7) to eight (8) of service:
- Full-service activation begins.
Initiating Service Requests and Change Requests
- Customers shall communicate Service Requests and/or Change Requests to the Service Desk by opening an “Issue” via the Hyland Community Customer Project Portal;
- Unless explicitly identified, all Service Requests and Change Requests must be reported directly to the Service Desk and cannot be communicated through any indirect means. Any indirect communicated Service Requests and Change Requests are not subject to the obligations as defined in the Service Level Objectives;
- Customer personnel contacting the Service Desk must be authorized to do so as identified by the Service Delivery Manager upon Service Initiation in the Runbook;
- The Service Desk will not respond to requests from non-authorized personnel; and
- Customer personnel authorized to contact the Service Desk must be qualified to interact on a technical basis at a level required to support the existing Hyland solution (see Customer Obligations).
- Resolution for Service Requests and Change Requests are as follows:
- Service Request resolution activity will be performed by Hyland and Customer at a mutually agreed upon time upon Review and Response of the Service Request;
- Hyland and Customer will mutually agree when functionality is materially restored, or a recommendation is made to the Customer to remediate the Service Request;
- Any Change Request for off-hours maintenance windows, extended involvement such as blocks of time of eight (8) hours or more, or other activities requested to be performed by Hyland, must be requested and scheduled 72 hours in advance;
- Service Request resolution activity will be performed by Hyland and Customer at a mutually agreed upon time upon Review and Response of the Service Request;
- Customer must respond to the Hyland Service Desk in a timely manner for the purposes of resolving an open issue. If Customer fails to respond after two (2) attempts by Hyland to contact and coordinate with Customer, Hyland will close the case.
Elective Service Change Requests
Operate Service Level
Operate service level provides the following in relation to Elective Service Change Requests:
- Hyland will review all submitted Elective Change Requests from a Customer;
- Hyland will provide a response to all submitted Elective Change Requests limited to the following:
- Suggested module usage to satisfy a business requirement or use case
- Training in module configuration to qualified individuals (such as a designated System Administrator)
- Suggested software configuration to satisfy a business requirement or use case
- General consulting in relation to business requirements or use cases
- Hyland will not perform configuration tasks, testing or migration to production of Elective Service Changes for the Customer at the Operate service level;
- Hyland will not perform end-user training;
- Requests for additional Professional Services that do not constitute Managed Services may be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Change Control Process.
Enhance / Expand Service Levels
Enhance and Expand service levels provide the following in relation to Elective Service Change Requests:
- Customer will receive an account balance of up to fifty (50) Elective Service Change Requests per twelve (12) month period, to be managed in the following manner:
- All Elective Service Change Requests will be charged a minimum of one (1) change per request;
- Unused Elective Service Change Requests will not be rolled over into any subsequent period or renewal term;
- Hyland will evaluate all Elective Service Change Requests to determine work effort associate to the request;
- Hyland reserves the right to charge multiple change requests from the account balance for requests which encompass multiple component changes;
- Hyland reserves the right to recommend a separate Professional Services engagement for requested changes which are determined to exceed the available balance of change requests for work which are not typically addressed by the managed services delivery team (such as Software conversions);
- In a single month, Customer may submit Elective Service Change Requests that total no more than twenty (25) percent of the total annual Elective Service Change Requests allotment;
- Elective Service Change Requests are scheduled services subject to mutually agreed upon timelines;
- Hyland will prioritize all Elective Service Change Requests received from the Customer and will determine the order of changes to be scheduled and completed;
- Hyland will provide a monthly report of Elective Service Change information that will include the following information:
- Opening balance
- Credits
- Debits
- Remaining balance
- Hyland will make reasonable efforts to respond to Emergency Change Requests as priority requests, utilizing available resources on an as-needed basis, which may be different from normally designated resources;
- Customer is responsible to provide sufficient business requirements and/or use cases in order for Hyland to perform Elective Service Change Requests. Hyland reserves the right to close Elective Service Change Requests if insufficient details are provided by the Customer or Customer is non-responsive to requests from Hyland for additional information or participation;
- Hyland will train qualified, designated representatives from the Customer on newly deployed functionality. However, it is the responsibility for the Customer to train all end-users; and
- Requests for additional Professional Services that do not constitute Managed Services may be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Change Control Process.
Service Level Objectives (SLO)
Characteristic | Definition | Service Level Objective (SLO) | |
System Outage | The primary business function is stopped with no redundancy or backup. The Customer determines the issue as critical. | Additional Description | Customer is responsible to submit a Technical Support Case via Hyland Community or contacting Technical Support: https://community.hyland.com/customer-portal/wiki/hyland-support/technical-support-phone-numbers Upon receiving notification from Customer, Hyland’s Technical Support will assess the Priority Level and follow the Customer’s Technical Support protocols. |
Service Level Credit | Not applicable | ||
Service Request | A non-critical business function is degraded. Service Desk will begin Review of the Service Request within one (1) hour of reported impact during normal business hours. If reported off-hours, the Service Desk will begin actively working within one (1) hour of the next business day. | Measurement Window | One (1) Month |
Expected Service Level | Less than 1 cumulative miss (Review) in each measurement window | ||
Minimum Service Level | Less than five (5) cumulative misses (Review) in each measurement window | ||
Calculation | (1) The actual number of Service Requests that have a Review time greater than one (1) hour in each calendar month. | ||
Additional Description | Service Requests as recorded by Hyland are used to determine the number of Service Requests responded to. Service Requests created at an inappropriately identified characteristic level will be closed and excluded from the calculation. | ||
Service Level Credit | Seven (7) percent of monthly contract value. | ||
Change Request | Service Desk will begin Review of the submitted Customer Change Request within one (1) business day, during normal business hours. | Measurement Window | One (1) Month |
Expected Service Level | Less than one (1) cumulative miss (Review) in each measurement window | ||
Minimum Service Level | Three (3) cumulative misses (Review) in each measurement window | ||
Calculation | The actual number of Change Requests that have a Review time greater than one (1) business day, during normal business hours in each calendar month. | ||
Additional Description | Change Requests as recorded by Hyland are used to determine the number of changes in each calendar month. Requests created missing pertinent information to complete the change will be closed or excluded from the calculation. | ||
Service Level Credit | Five (5) percent of monthly contract value. | ||
- Enforcement of SLOs will begin in the third (3rd) month following full-service activation, as described in the Section above entitled “Service Initiation and Sample Timeline.”
- Hyland will measure and report performance of the SLOs and Hyland’s performance against SLOs on a monthly basis;
- Customer acknowledges and agrees that Service Level Credits shall not be deemed to be payment for any damages or loss rather shall be used as credits to offset fees due to Hyland; provided, however, that Service Level Credits shall be deemed the sole and exclusive remedy for Customer in connection with failure to meet any Service Level;
- Service Level Credits will be paid as a credit against Hyland’s then current invoice to Customer during the next billing cycle after which the associated Service Level failure occurred;
- Customer may, at its sole discretion, decline recovery of Service Level Credits on a case-by-case basis, but Service Level Credits may not be combined with any potential future Service Level Credits;
- Service Level Credits cannot be carried forward into renewal terms
- Customer must notify Hyland in writing within thirty (30) days following the end of the month during which the services were provided stating the amount of service fees Customer has requested to be credited:
- Any credit paid by Hyland to Customer (up to the limits stated above) applies only to the next billing cycle and will constitute Customer’s sole and exclusive remedy;
- Any Service Level failure due to any of the exclusions listed below shall not be included in the measurement of Hyland’s performance against the applicable Service Level:
- Scheduled maintenance windows, critical maintenance and customer requested maintenance downtime for the impacted services.
- Any event outside of Hyland’s control, including but not limited to the following events:
- Emergency maintenance activities approved by Customer;
- Work performed specifically at Customer’s request and direction which directly impacts the availability of the Service;
- Problems with Customer’s infrastructure, applications, and/or data either provided by the Customer or provided by the Customer’s vendors;
- Other activities the Customer directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against or failure of third parties, and other force majeure items; and
- Lack of availability or untimely response time of Customer to respond or assist to incidents that require its participation for source identification and/or resolution, including meeting Customer’s responsibilities for any prerequisite services or failure of Customer to provide appropriate maintenance on components.
Customer Obligations
Customer Personnel
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary;
- The sponsor/resource will manage all customer obligations as defined within this Services Proposal; and
- The sponsor/manager will coordinate all key departmental decision makers, technical experts, subject matter experts, end user representatives and third-party software application resources.
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment, typically the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Services Proposal;
- Customer personnel contacting the Service Desk must be authorized to do so as defined in Services Initiation by the Service Delivery Manager, and qualified to interact on a technical basis at a level required to support the Software solution;
- Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software; and
- Customer must respond to the Hyland Service Desk in a reasonable timely manner for the purposes of resolving an open case. If after two (2) attempts by Hyland to contact and coordinate with Customer, and the Customer is non-responsive to such attempts, Hyland will close the case accordingly.
Software and Network Environment
Hyland will review with Customer the requirements for establishing connectivity and access to the Hyland Software solution.
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer's environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go-live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
Non-Solicitation; Non-Hire
Change control process
Term and Termination
Appendix 1 – Managed Services Definitions
Appendix 2 - Description of Add-Ons
The following Add-On Managed Services are available, if applicable.
Custom Script Enhancement(s) and/or Development Blocks |
Additional Elective Service Change Blocks |
Dedicated Pod |
24/7 Extended Coverage |
Offshore Exclusion |
Custom Script Enhancement(s)/Development Requests
- Customer will be entitled to a quantity of Custom Script Enhancement(s)/ Development Requests designated by Hyland for use during the Initial Term (with each quantity, as specified on the Order Form, being comprised of five requests), which will be managed in the following manner:
- All Custom Script Enhancement(s)/Development requests will be charged a minimum of one (1) change per request;
- Unused Custom Script Enhancement(s)/Development requests will not be rolled over into any subsequent period or renewal term;
- Hyland will evaluate all Custom Script Enhancement(s)/Development Requests to determine work effort associate to the request;
- Hyland reserves the right to charge multiple change requests from the account balance for requests which encompass multiple component changes;
- Hyland reserves the right to recommend a separate Professional Services engagement for requested changes which are determined to exceed the available balance of change requests for work which are not typically addressed by the managed services delivery team (such as Software conversions);
- In a single month, Customer may submit Custom Script Enhancement(s)/Development requests that total no more than twenty-five (25) percent of the total annual Custom Script Enhancement(s)/Development request allotment;
- Custom Script Enhancement(s)/Development Requests are scheduled services with mutually agreed upon timelines;
- Hyland will prioritize all Custom Script Enhancement(s)/Development Requests received from the Customer and will determine the order of changes to be scheduled and completed;
- Hyland will provide a monthly report of Custom Script Enhancement(s)/Development information that will include the following information:
- Opening balance
- Credits
- Debits
- Remaining balance
- Hyland will make reasonable efforts to respond to Emergency Custom Script Enhancement(s)/Development Requests as priority requests, utilizing available resources on an as-needed basis, which may be different from normally designated resources;
- Customer is responsible to provide sufficient business requirements and/or use cases in order for Hyland to perform Custom Script Enhancement(s)/Development Requests. Hyland reserves the right to close Custom Script Enhancement(s)/Development Requests if insufficient details are provided by the Customer or Customer is non-responsive to requests from Hyland for additional information or participation;
- Hyland will train qualified, designated representatives from the Customer on newly deployed functionality. However, it is the responsibility for the Customer to train all end-users.
Additional Elective Service Change Requests
Dedicated Pod
24/7 Extended Coverage
Offshore Exclusion
Hyland will only use resources located in the region specified in the Order Form.
Effective April 28th 2022 to May 10th 2022
DownloadTable of Contents
Managed Services; Add-On Managed Services
- The Managed Services shall be specific to Customer’s existing Software solution(s).
- Managed Services will support the number of products and environments noted on the Order Form.
- Hyland’s involvement may range owning specific tasks to consultation only.
- All services will be performed off-site, remotely.
- Services will be provided in English only.
- Standard Business Hours are defined as 8:00 a.m. to 6:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location
Service Level Offerings
Please reference the Order Form for a description of the service level offering selected for purchase.
Services | Operate | Enhance | Expand |
|---|---|---|---|
| Defined Service Level Objectives (SLOs) | ü | ü | ü |
Service Desk | General | Designated | Designated |
Service Delivery Manager | Designated | Designated | Designated |
Monthly Activity Report | ü | ü | ü |
Administration | ü | ü | ü |
Configuration Management Database | ü | ü | ü |
Solution Design Documentation | ü | ü | ü |
Quarterly Business Review | ü | ü | |
Long-Term Release Management | ü | ü | |
Strategic Workshop | ü | ü | |
Expansion Management | ü | ||
Incident | üReview üResponse üResolution | üReview üResponse üResolution | üReview üResponse üResolution |
Change | üReview üResponse | üReview üResponse üResolution | üReview üResponse üResolution |
Release | üReview üResponse | üReview üResponse üResolution | üReview üResponse üResolution |
Problem | üReview | üReview üResponse üResolution | üReview üResponse üResolution |
Assumptions
- Some resources assigned to perform the Professional Services may be employees of Hyland Software, Inc.’s subsidiaries located in other countries;
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Reference to business day equates to standard workweek of Monday through Friday;
- Customer is aware that Managed Services are intended to assist with specific requests for assistance, and shall not be used to support in-depth or ongoing project activities, unless planned for in advance and mutually agreed in writing. Requests for Professional Services that do not constitute Managed Services shall be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Project Change Control Process described below; and
- Customer understands Managed Services are intended to supplement Customer’s needs beyond standard technical support. General Software related questions, such as requests for downloads, documentation, or to report issues, will be subject to follow standard technical support.
Exclusions
The following items are not covered under Managed Services:
- Consultation, expertise and/or support of third-party software or hardware;
- Services to support Customer end users (including, but not limited to, manual password resets, taking support calls from users, end user training), unless otherwise agreed to by Hyland.
- Replacement for general Technical Support or Global Cloud Services Support;
- Custom scripted elements and custom development, unless Customer has purchased the Custom Scripting Enhancement/Development Add-On;
- Direct database modifications;
- Full project lifecycle management; and
- Full project delivery utilizing Hyland’s formal project methodology in any form.
Service Initiation and Sample Timeline
Promptly following the beginning of the Initial Term, Hyland will perform the following services to prepare for full-service activation.
The following is provided as a recommended timeline and approach for planning purposes only:
- Week one (1) of service:
- Hyland will provide a Service Delivery Manager to conduct an initial kickoff with Customer to review the selected Managed Services;
- Hyland and Customer will review guidelines and complete the Managed Services Runbook as part of service activation. These activities include:
- Review the roles and responsibilities of Customer and Hyland;
- Review with Customer Managed Services engagement practices;
- Identify responsible Customer personnel, including who is authorized to request and/or approve changes, and utilize services described herein;
- Weeks two (2) to four (4) of service:
- Review Change and Release practices;
- Review access and security policies, and/or other Customer considerations;
- Review how to contact Hyland for assistance and escalation processes;
- Review requirements for connection to Customer’s Software solution by Hyland;
- Review standard notification procedures;
- Review Customer’s current environment and solution configuration to gain understanding of existing Software solution;
- Introduce Customer to, and begin constructing the Runbook and Solution Design Documentation (SDD);
- Hyland and Customer continue building Runbook and SDD for purposes of storing in the Configuration Management Database (CMDB);
- Initial draft of Runbook and SDD should be complete by end of week four (4);
- If Enhance or Expand, Hyland works with the customer to schedule and plan for a Strategic Workshop;
- Weeks five (5) to six (6) of service:
- Complete the Runbook, SDD and CMDB;
- Hyland will also provide customer access to a Hyland provided and maintained Configuration Management Database (CMDB) platform.
- Weeks seven (7) to eight (8) of service:
- Full-service activation begins.
Initiating Service Requests and Change Requests
- Customers shall communicate Service Requests and/or Change Requests to the Service Desk by opening an “Issue” via the Hyland Community Customer Project Portal;
- Unless explicitly identified, all Service Requests and Change Requests must be reported directly to the Service Desk and cannot be communicated through any indirect means. Any indirect communicated Service Requests and Change Requests are not subject to the obligations as defined in the Service Level Objectives;
- Customer personnel contacting the Service Desk must be authorized to do so as identified by the Service Delivery Manager upon Service Initiation in the Runbook;
- The Service Desk will not respond to requests from non-authorized personnel; and
- Customer personnel authorized to contact the Service Desk must be qualified to interact on a technical basis at a level required to support the existing Hyland solution (see Customer Obligations).
- Resolution for Service Requests and Change Requests are as follows:
- Service Request resolution activity will be performed by Hyland and Customer at a mutually agreed upon time upon Review and Response of the Service Request;
- Hyland and Customer will mutually agree when functionality is materially restored, or a recommendation is made to the Customer to remediate the Service Request;
- Any Change Request for off-hours maintenance windows, extended involvement such as blocks of time of eight (8) hours or more, or other activities requested to be performed by Hyland, must be requested and scheduled 72 hours in advance;
- Service Request resolution activity will be performed by Hyland and Customer at a mutually agreed upon time upon Review and Response of the Service Request;
- Customer must respond to the Hyland Service Desk in a timely manner for the purposes of resolving an open issue. If Customer fails to respond after two (2) attempts by Hyland to contact and coordinate with Customer, Hyland will close the case.
Elective Service Change Requests
Operate Service Level
Operate service level provides the following in relation to Elective Service Change Requests:
- Hyland will review all submitted Elective Change Requests from a Customer;
- Hyland will provide a response to all submitted Elective Change Requests limited to the following:
- Suggested module usage to satisfy a business requirement or use case
- Training in module configuration to qualified individuals (such as a designated System Administrator)
- Suggested software configuration to satisfy a business requirement or use case
- General consulting in relation to business requirements or use cases
- Hyland will not perform configuration tasks, testing or migration to production of Elective Service Changes for the Customer at the Operate service level;
- Hyland will not perform end-user training;
- Requests for additional Professional Services that do not constitute Managed Services may be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Change Control Process.
Enhance / Expand Service Levels
Enhance and Expand service levels provide the following in relation to Elective Service Change Requests:
- Customer will receive an account balance of up to fifty (50) Elective Service Change Requests per twelve (12) month period, to be managed in the following manner:
- All Elective Service Change Requests will be charged a minimum of one (1) change per request;
- Unused Elective Service Change Requests will not be rolled over into any subsequent period or renewal term;
- Hyland will evaluate all Elective Service Change Requests to determine work effort associate to the request;
- Hyland reserves the right to charge multiple change requests from the account balance for requests which encompass multiple component changes;
- Hyland reserves the right to recommend a separate Professional Services engagement for requested changes which are determined to exceed the available balance of change requests for work which are not typically addressed by the managed services delivery team (such as Software conversions);
- In a single month, Customer may submit Elective Service Change Requests that total no more than twenty (25) percent of the total annual Elective Service Change Requests allotment;
- Elective Service Change Requests are scheduled services subject to mutually agreed upon timelines;
- Hyland will prioritize all Elective Service Change Requests received from the Customer and will determine the order of changes to be scheduled and completed;
- Hyland will provide a monthly report of Elective Service Change information that will include the following information:
- Opening balance
- Credits
- Debits
- Remaining balance
- Hyland will make reasonable efforts to respond to Emergency Change Requests as priority requests, utilizing available resources on an as-needed basis, which may be different from normally designated resources;
- Customer is responsible to provide sufficient business requirements and/or use cases in order for Hyland to perform Elective Service Change Requests. Hyland reserves the right to close Elective Service Change Requests if insufficient details are provided by the Customer or Customer is non-responsive to requests from Hyland for additional information or participation;
- Hyland will train qualified, designated representatives from the Customer on newly deployed functionality. However, it is the responsibility for the Customer to train all end-users; and
- Requests for additional Professional Services that do not constitute Managed Services may be provided under a separate mutually agreed upon and executed services proposal or a change order executed by the parties pursuant to the Change Control Process.
Service Level Objectives (SLO)
Characteristic | Definition | Service Level Objective (SLO) | |
System Outage | The primary business function is stopped with no redundancy or backup. The Customer determines the issue as critical. | Additional Description | Customer is responsible to submit a Technical Support Case via Hyland Community or contacting Technical Support: https://community.hyland.com/customer-portal/wiki/hyland-support/technical-support-phone-numbers Upon receiving notification from Customer, Hyland’s Technical Support will assess the Priority Level and follow the Customer’s Technical Support protocols. |
Service Level Credit | Not applicable | ||
Service Request | A non-critical business function is degraded. Service Desk will begin Review of the Service Request within one (1) hour of reported impact during normal business hours. If reported off-hours, the Service Desk will begin actively working within one (1) hour of the next business day. | Measurement Window | One (1) Month |
Expected Service Level | Less than 1 cumulative miss (Review) in each measurement window | ||
Minimum Service Level | Less than five (5) cumulative misses (Review) in each measurement window | ||
Calculation | (1) The actual number of Service Requests that have a Review time greater than one (1) hour in each calendar month. | ||
Additional Description | Service Requests as recorded by Hyland are used to determine the number of Service Requests responded to. Service Requests created at an inappropriately identified characteristic level will be closed and excluded from the calculation. | ||
Service Level Credit | Seven (7) percent of monthly contract value. | ||
Change Request | Service Desk will begin Review of the submitted Customer Change Request within one (1) business day, during normal business hours. | Measurement Window | One (1) Month |
Expected Service Level | Less than one (1) cumulative miss (Review) in each measurement window | ||
Minimum Service Level | Three (3) cumulative misses (Review) in each measurement window | ||
Calculation | The actual number of Change Requests that have a Review time greater than one (1) business day, during normal business hours in each calendar month. | ||
Additional Description | Change Requests as recorded by Hyland are used to determine the number of changes in each calendar month. Requests created missing pertinent information to complete the change will be closed or excluded from the calculation. | ||
Service Level Credit | Five (5) percent of monthly contract value. | ||
- Enforcement of SLOs will begin in the third (3rd) month following full-service activation, as described in the Section above entitled “Service Initiation and Sample Timeline.”
- Hyland will measure and report performance of the SLOs and Hyland’s performance against SLOs on a monthly basis;
- Customer acknowledges and agrees that Service Level Credits shall not be deemed to be payment for any damages or loss rather shall be used as credits to offset fees due to Hyland; provided, however, that Service Level Credits shall be deemed the sole and exclusive remedy for Customer in connection with failure to meet any Service Level;
- Service Level Credits will be paid as a credit against Hyland’s then current invoice to Customer during the next billing cycle after which the associated Service Level failure occurred;
- Customer may, at its sole discretion, decline recovery of Service Level Credits on a case-by-case basis, but Service Level Credits may not be combined with any potential future Service Level Credits;
- Service Level Credits cannot be carried forward into renewal terms
- Customer must notify Hyland in writing within thirty (30) days following the end of the month during which the services were provided stating the amount of service fees Customer has requested to be credited:
- Any credit paid by Hyland to Customer (up to the limits stated above) applies only to the next billing cycle and will constitute Customer’s sole and exclusive remedy;
- Any Service Level failure due to any of the exclusions listed below shall not be included in the measurement of Hyland’s performance against the applicable Service Level:
- Scheduled maintenance windows, critical maintenance and customer requested maintenance downtime for the impacted services.
- Any event outside of Hyland’s control, including but not limited to the following events:
- Emergency maintenance activities approved by Customer;
- Work performed specifically at Customer’s request and direction which directly impacts the availability of the Service;
- Problems with Customer’s infrastructure, applications, and/or data either provided by the Customer or provided by the Customer’s vendors;
- Other activities the Customer directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against or failure of third parties, and other force majeure items; and
- Lack of availability or untimely response time of Customer to respond or assist to incidents that require its participation for source identification and/or resolution, including meeting Customer’s responsibilities for any prerequisite services or failure of Customer to provide appropriate maintenance on components.
Customer Obligations
Customer Personnel
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary;
- The sponsor/resource will manage all customer obligations as defined within this Services Proposal; and
- The sponsor/manager will coordinate all key departmental decision makers, technical experts, subject matter experts, end user representatives and third-party software application resources.
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment, typically the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Services Proposal;
- Customer personnel contacting the Service Desk must be authorized to do so as defined in Services Initiation by the Service Delivery Manager, and qualified to interact on a technical basis at a level required to support the Software solution;
- Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software; and
- Customer must respond to the Hyland Service Desk in a reasonable timely manner for the purposes of resolving an open case. If after two (2) attempts by Hyland to contact and coordinate with Customer, and the Customer is non-responsive to such attempts, Hyland will close the case accordingly.
Software and Network Environment
Hyland will review with Customer the requirements for establishing connectivity and access to the Hyland Software solution.
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer's environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go-live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
Non-Solicitation; Non-Hire
Change control process
Term and Termination
Appendix 1 – Managed Services Definitions
Description | ||
Service Desk | Responsible for coordinating the management of Service Requests and Change Requests created by the Customer. Such resources that Hyland, in its direction provides to Customer may be designated but not dedicated solely to the Customer and may change based on general resource availability. | |
Service Delivery Manager | Primary resource responsible for overseeing the successful delivery of Managed Services. Primary responsibilities include:
| |
Monthly Activity Report |
| |
Administration | Means services provided under the direction and supervision of the Customer, which may include:
| |
Configuration Management Database | Means a database used by Hyland to store information about hardware and software assets to ensure consistency in configuration management and shared knowledge of Customer’s Software solution. | |
Solution Design Documentation | Means documentation used in maintaining information pertaining to the design of the Customer’s Software solution. Hyland is responsible for maintaining updated Solution Design Documentation based on changes made to Customer’s solution. | |
Quarterly Business Review | Means every ninety (90) days Hyland will conduct a Quarterly Business Review for the purposes of reviewing the overall status and engagement of Managed Services. | |
Long-Term Release (LTR) Management | A designation given to certain Enhancement Packs (EP), generally once per year, to identify the builds Hyland will support for the longest duration according to Hyland’s Technical Support policies. EPs generally include enhancements, fixes and security updates provided to Customers multiple times per year. Within Managed Services, Customer has access to use Managed Services for one (1) LTR Release annually. | |
Strategic Workshop | Provides one (1) annual engagement designed to help Customer discover the top priorities and deliver a 12-month action plan to achieve quick wins that may drive changes to the Software solution. | |
Expansion Management | Provides Customer the ability to expand the existing Software solution beyond the scope of the existing business process, delivered by a Hyland resource(s). This includes the ability to implement up to two (2) new Software solutions at a time in parallel, based on mutual agreement and coordination between Hyland and Customer. Hyland will use Software-based configuration for delivery of any new solutions, this excludes any custom scripted elements and custom development. | |
| ||
Problem |
| |
Change | Changes are categorized on type of Change Requests. Changes are any addition (installation), modification or removal of anything that has an effect on existing Software or solutions. For any requested Changes, Customer is responsible to submit a Change Request via Hyland Community as a Case. For the purposes of Managed Services, Changes are defined as:
Elective Change:
Emergency Change:
| |
Release | Management of incremental software, documentation, processes or other component upgrades required to move from one software component version to another. As part of any Release update process, the Service Desk will review the impact and urgency to the Customer against the existing Software solution. Component Software updates that are Customer requests for the purpose of obtaining additional features or functions are considered discretionary and are handled as an Elective Change . Component software updates to remediate Service Requests are handled as part of Incident Resolution. | |
Review |
| |
Response |
| |
Resolution | Hyland receives/produces a response resolution plan and acts to implement said response. A Resolution is complete when functionality is materially restored, or a recommendation is made to the Customer to remediate a Service Request or Change Request. If a configuration change is required to resolve an issue or implement a Change, the Service Desk will follow the change management practices established with the Customer. |
Appendix 2 - Description of Add-Ons
The following Add-On Managed Services are available, if applicable.
Custom Script Enhancement(s) and/or Development Blocks |
Additional Elective Service Change Blocks |
Dedicated Pod |
24/7 Extended Coverage |
Offshore Exclusion |
Custom Script Enhancement(s)/Development Requests
- Customer will be entitled to a quantity of Custom Script Enhancement(s)/ Development Requests designated by Hyland for use during the Initial Term (with each quantity, as specified on the Order Form, being comprised of five requests), which will be managed in the following manner:
- All Custom Script Enhancement(s)/Development requests will be charged a minimum of one (1) change per request;
- Unused Custom Script Enhancement(s)/Development requests will not be rolled over into any subsequent period or renewal term;
- Hyland will evaluate all Custom Script Enhancement(s)/Development Requests to determine work effort associate to the request;
- Hyland reserves the right to charge multiple change requests from the account balance for requests which encompass multiple component changes;
- Hyland reserves the right to recommend a separate Professional Services engagement for requested changes which are determined to exceed the available balance of change requests for work which are not typically addressed by the managed services delivery team (such as Software conversions);
- In a single month, Customer may submit Custom Script Enhancement(s)/Development requests that total no more than twenty-five (25) percent of the total annual Custom Script Enhancement(s)/Development request allotment;
- Custom Script Enhancement(s)/Development Requests are scheduled services with mutually agreed upon timelines;
- Hyland will prioritize all Custom Script Enhancement(s)/Development Requests received from the Customer and will determine the order of changes to be scheduled and completed;
- Hyland will provide a monthly report of Custom Script Enhancement(s)/Development information that will include the following information:
- Opening balance
- Credits
- Debits
- Remaining balance
- Hyland will make reasonable efforts to respond to Emergency Custom Script Enhancement(s)/Development Requests as priority requests, utilizing available resources on an as-needed basis, which may be different from normally designated resources;
- Customer is responsible to provide sufficient business requirements and/or use cases in order for Hyland to perform Custom Script Enhancement(s)/Development Requests. Hyland reserves the right to close Custom Script Enhancement(s)/Development Requests if insufficient details are provided by the Customer or Customer is non-responsive to requests from Hyland for additional information or participation;
- Hyland will train qualified, designated representatives from the Customer on newly deployed functionality. However, it is the responsibility for the Customer to train all end-users.
Additional Elective Service Change Requests
Dedicated Pod
24/7 Extended Coverage
Offshore Exclusion
Hyland will only use resources located in the region specified in the Order Form.
General Terms Schedule
Effective February 12th 2024
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (these “General Terms” or this “General Terms Schedule”) is part of the Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this General Terms Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this General Terms Schedule, as well as any other terms or documents incorporated within the Incorporating Document.
This General Terms Schedule includes terms that will apply to any product license or service Customer purchases from Hyland under another schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this General Terms Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term of the Agreement and Product Subscription(s). The Agreement shall have a term commencing on the Effective Date and will continue until all Product Subscriptions have expired or been terminated. The term of a Product Subscription shall be the Initial Term, and such term shall automatically renew for additional periods of one (1) year unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the then-current term. In the event Customer purchases add-on licenses or services to a Product Subscription via an Order Form or purchase order, the term of such add-on licenses or service shall run coterminous with the existing applicable Product Subscription, unless otherwise stated via an Order Form.
1.2 Termination By Either Party.
1.2.1 Either party may terminate the Agreement effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User restrictions, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of the Agreement will be in violation of any law or regulation implemented or modified after the Effective Date, Customer or Hyland, as the case may be, may terminate the applicable license or services under the Agreement, upon thirty (30) days written notice to the other party.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including a party’s obligation to pay any fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied. For clarity, this includes all provisions under this General Terms Schedule, other than the Marketing and Publicity provision.
1.3.3. Additional Effects or Consequences of Termination. Upon termination of the Agreement, any license to use the Software or Hyland Cloud Service will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software, Documentation, and, if applicable, Hyland Cloud Service; and (b) in the case of Software and Documentation within Customer’s control, either: (i) return the Software and Documentation to Hyland, or (ii) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
2. PAYMENT TERMS.
2.1 Invoicing. All invoices shall be sent electronically by Hyland to the other party to the attention of “Accounts Payable,” or to such other person or department as the other party may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.2 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement, except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts. With respect to any annual fees, Hyland may increase or decrease the fees invoiced if the value of the currency used, determined based on the currency’s exchange rate to USD as tracked and published by the Wall Street Journal, has fluctuated by ten percent (10%) or more between the beginning of the prior annual period and the applicable invoice date.
2.3 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.4 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), that are timely disputed in accordance with this Section, both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. Any amounts not timely disputed in accordance with the preceding sentence shall be deemed to be undisputed and shall be payable in accordance with the terms of the Agreement. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which the invoiced party has provided written notice to Hyland, prior to the invoice due date, setting forth the such party’s good faith objections to payment of such amounts.
2.5 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except properly Disputed Amounts in accordance with the Agreement) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including, if applicable, the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.6 Currency; Delivery of Tangible Keys and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in the currency identified in the applicable Order Form or purchase order accepted by Hyland. Delivery of tangible keys or CDs, if any, shall be F.O.B. Hyland’s (or its affiliate's) offices.
2.7 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently, https://university.hyland.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with the Agreement. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training or the Effective Date of the applicable Order Form for such training, whichever is earlier.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information disclosed hereunder that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership. Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services or Documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND AND ITS SUPPLIERS DO NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 HYLAND SPECIFICALLY ASSUMES NO RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S OR COMMUNITY CONNECT USER’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT (AS THE CASE MAY BE) IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES OR EQUIPMENT DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES AND EQUIPMENT ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(a) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000.00 bodily injury each accident, USD $1,000,000.00 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer’s Liability Insurance Coverage shall be GBP 5,000,000.00;
(b) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD$1,000,000.00 per occurrence and USD $2,000,000.00 in aggregate;
(c) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(d) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(e) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Affiliate Rights. Affiliates of Customer will have rights to use the Software or Hyland Cloud Services purchased pursuant to an Order Form to the extent such Affiliate(s) are identified on such Order Form (an "Authorized Affiliate"). The Customer shall be responsible for any breaches of the Agreement by any such Authorized Affiliate as if such Authorized Affiliate was the Customer.
9.2 Governing Law; Jurisdiction. See the Governing Law; Jurisdiction Exhibit available attached hereto as Exhibit A.
9.3 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.4 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.5 Integration. The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The parties specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.6 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (a) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or the last known business address of such party; or (b) email to the address specified in the Agreement or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all notices shall also be sent with copy to:
Hyland Software, Inc.
28105 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@hyland.com
9.7 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in the Agreement, neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Notwithstanding anything to the contrary, Hyland may assign the Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment made without compliance with the section shall be null and void and of no force or effect. The parties agree that Hyland may assign or subcontract all or part of its obligations contemplated by the Agreement to a Hyland affiliate.
9.8 Severability. If any provision of the Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
9.9 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.10 Independent Contractor. The parties hereto are independent contractors under the Agreement and nothing in the Agreement (or any Schedule hereto) authorizes a party to act as a legal representative or agent of the other party for any purpose or to commit the other party to any obligations with a third party, including, but not limited to, any obligations related to such other party’s employees. It is expressly understood that the Agreement does not establish a franchise relationship, partnership, principal-agent relationship or joint venture.
9.11 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer hereto agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export Hyland’s Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use Hyland’s Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.12 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights may not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance and/or injunctive relief to enforce the provisions of the Agreement.
9.13 Non-Solicitation; No-Hire. See the Non-Solicitation; No-Hire Schedule attached hereto as Exhibit B.
9.14 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, the Software, Customer's use of the Software, the benefits Customer has derived from the Software or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland's expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the Software solution established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which the Software will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically permitted herein, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.15 Counterparts. The Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the Agreement.
9.16 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.17 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement or that any of its terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 99 or similar laws; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.18 GRaaS Services. If Customer is purchasing GRaaS Services, GRaaS Services are not governed by the terms of the Agreement, but instead are subject to the GRaaS Services Terms and Conditions, which are available at https://www.hyland.com/en/legal/graas-terms-conditions.
9.19 Hyland Content Portal. If Customer is purchasing a hosted version of the Hyland Content Portal, such hosted version of the Hyland Content Portal is not governed by the terms of the Agreement, but instead is subject to the Hyland Content Portal Terms of Use, which are available at https://legal.hyland.com/Customer-Legal-Center#hyland-portal-termsandconditions.
9.20 Additional Terms and Conditions. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Hyland Company |
Hyland Software Australia Pty Ltd. Hyland Software Brasil LTDA. Hyland Colombia S.A.S. Hyland France S.A.S. Hyland Software Germany GmbH Hyland Mexico S. de R.L. de C.V. Hyland Software, Inc., if Customer is located in Peru | Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I |
9.21 Controlling Language. Hyland may make other versions of this General Terms Schedule available in other languages at this online location. This English language version of this General Terms Schedule controls over any version of the General Terms Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this General Terms Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the General Terms Schedule that may be made available at this online location in another language.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Affiliate” of the Customer means an entity that has control of, is under control by, or is under common control with the Customer, either directly or indirectly through one or more other entities that have control of, are under control by, or are under common control with the Customer. The term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity through the ownership of at least 50% of voting securities.
“Customer” means the person or entity set forth on the Order Form.
“Effective Date” means the date the Incorporating Document is executed by the last party to sign the Incorporating Document.
“GraaS Services” means the Policy Center Solution and Data Sets to which Customer has purchased a subscription under an Order Form, which are available at https://www.hyland.com/en/legal/graas-terms-conditions.
“Hyland Content Portal” means: (a) a portal solution that comprises of both content, via portal pages, and online forms enabling Customer to manage content, forms and data in one centralized place; and (b) is hosted by a third party software vendor of Hyland.
“Initial Term” is defined in the applicable Order Form under which Customer has purchased the applicable Product Subscription(s).
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Order Form” means a document signed by authorized representatives of each party describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (a) in violation of the license provisions of any Schedule of the Agreement; (b) contrary to the ownership provision of the General Terms; (c) in violation of the Prohibited Conduct provisions of the General Terms; or (d) in violation of any term of the Agreement that is identified to be a Prohibited Act.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products identified in an Order Form and/or for which Customer submits a written purchase order to Hyland (or an authorized channel partner, if applicable) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement or an agreement with one of Hyland’s authorized Channel Partners, as the case may be. Software does not include Alfresco Community Versions, Hyland Content Portal or GraaS Services.
Exhibit A
Governing Law; Jurisdiction Schedule
The Governing Law; Jurisdiction Section of the General Terms Schedule shall be the term set forth on this Exhibit A based upon the applicable Hyland company listed below:
1. Hyland Software, Inc. If Hyland is Hyland Software, Inc., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio U.S.A. (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio U.S.A.
provided, that if Hyland Software, Inc. is Hyland and is providing services within the following countries, the terms identified below shall apply:
(a) Peru. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Republic of Peru, except for the Conflicts of Laws (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. In the event of any controversy in connection with the Agreement, including its interpretation, validity and existence, such controversy shall be resolved by arbitration of law, under the rules of the Arbitration Court of the Lima Chamber of Commerce. The arbitration panel shall be conformed by three arbitrators designated in accordance to such rules. Each Party may designate one arbitrator, and the two arbitrators son designated shall designate a third arbitrator who will act as the president of the panel.
(b) Singapore. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the Republic of Singapore (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Singapore.
2. Hyland Australia Pty Ltd. If Hyland is Hyland Australia Pty Ltd., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia, without regard to: (a) conflict of law provisions, to the extent such principles or rules would require the application of the laws of any jurisdiction other than the laws of Victoria, Australia; and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which the Parties intend to expressly exclude from the Agreement. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Victoria, Australia.
3. Hyland Software Brasil Ltda. If Hyland is Hyland Software Brasil Ltda., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Federative Republic of Brazil (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the central courts of the City of São Paulo.
4. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following term shall apply: The Agreement, and all claims or causes of action (whether in contract, tort, equity or statute) that may be based upon, arise out of or relate to the Agreement, or the negotiation, execution or performance of the Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with the Agreement or as an inducement to enter into the Agreement), shall be governed by and construed in accordance with the laws of the Province of Ontario and Canada, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Ontario and Canada, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. All disputes arising out of or in connection with the Agreement, including injunctive or other preliminary or interlocutory measures, will be resolved by the Courts of the Province of Ontario, to the exclusion of the jurisdiction of any other courts. The Parties agree to submit to the sole jurisdiction of the Courts of the Province of Ontario and will not raise any objection to the forum nor the jurisdiction of the Courts of the Province of Ontario.
5. Hyland Colombia S.A.S. If Hyland is Hyland Colombia S.A.S., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of Colombian legislation (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. In the event of any controversy, claim, action, suit, proceeding or dispute, in connection with the Agreement, including its interpretation, validity and existence, such controversy shall be resolved by arbitration of law, under the rules of the Arbitration Rules of the International Chamber of Commerce. The arbitration panel shall be conformed by arbitrators designated in accordance with such rules. The seat of the arbitral tribunal will be the city of Bogotá D.C. in Colombia, and will decide applying Colombian legislation.
6. Hyland France S.A.S. If Hyland is Hyland France S.A.S., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of France and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the commercial Courts of Paris (“Tribunal de Commerce”).
7. Hyland Japan G.K. If Hyland is Hyland Japan G.K., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of Japan (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the commercial Courts of Japan.
8. Hyland Software Germany GmbH. If Hyland is Hyland Software Germany GmbH, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the Laws of the Federal Republic of Germany (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Berlin, Germany.
9. Hyland Italy S.R.L. If Hyland is Hyland Italy S.R.L., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Italy (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Milano, Italy.
10. Hyland Software Malta Ltd. If Hyland is Hyland Software Malta Ltd., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Malta (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with this agreement will be subject to the jurisdiction of the Maltese Courts, to the exclusion of the jurisdiction of any other courts.
11. Hyland Software Mexico S. de R.L. de C.V. If Hyland is Hyland Software Mexico S. de R.L. de C.V., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Mexico (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with the agreement will be resolved by the competent courts sitting in Mexico City.
12. Hyland Netherlands B.V. If Hyland is Hyland Netherlands B.V., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Netherlands (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the competent courts of Amsterdam.
13. Hyland New Zealand Limited. If Hyland is Hyland New Zealand Limited, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall be governed by and construed in accordance with the laws of New Zealand, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of New Zealand, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. The Parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Agreement.
14. Hyland Poland Spolka Z.O.O.If Hyland is Hyland Poland Spolka Z.O.O., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Poland (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the common court having jurisdiction at the registered seat of Hyland.
15. Hyland Portugal, LDA. If Hyland is Hyland Portugal, LDA, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Portugal (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with the Agreement will be subject to the jurisdiction of the judicial courts of Lisbon, Portugal, to the exclusion of the jurisdiction of any other courts.
16. Hyland Spain S.L.U. If Hyland is Hyland Spain S.L.U., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Spain (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Madrid, Spain.
17. Hyland Switzerland SARL. If Hyland is Hyland Switzerland SARL, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Switzerland (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. The Parties hereby submit to the exclusive jurisdiction and venue of the courts at the registered seat of Hyland.
18. Hyland UK Operations Limited. If Hyland is Hyland UK Operations Limited, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of England and Wales (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of general jurisdiction located in London, England.
Exhibit B
Non-Solicitation; No-Hire Schedule
The Non-Solicitation; No-Hire Section of the General Terms Schedule shall be the term set forth on this Exhibit B:
During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to subsection (a) above. The parties agree that this provision survives the termination of the Agreement.
(d) subsection (d) of the Non-Solicitation; No-Hire Section of the Agreement shall be the term set forth on this Exhibit B based upon the applicable Hyland company listed below:
1. Hyland Software, Inc. If Hyland is Hyland Software, Inc. (except to the extent Customer is located in Peru), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, or Hyland Poland Spolka Z.O.O., the following term shall apply:
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees.
2. Hyland Software Brasil Ltda. If Hyland is Hyland Software Brasil Ltda, the following term shall apply: Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to One Hundred Ninety Thousand Real (R$190,000.00), and all costs associated with the collection of such liquidated damages, including but not limited to reasonable attorneys’ fees.
3. Hyland Software Germany GmbH. If Hyland is Hyland Software Germany GmbH, the following term shall apply: Each culpable violation of this provision by a party entitles the other to a payment in an amount equal to Fifty Thousand Euros (€50,000.00), and all costs associated with the collection of such payment, including but not limited to attorneys’ fees.
Additionally, notwithstanding anything to the contrary in this Exhibit B, subsection (c) above should be amended and replaced in its entirety as follows: A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation or an engagement pursuant to subsections (a) and (b). The parties agree that this provision survives the termination of the Agreement.
4. Hyland Software Mexico S. de R.L. de C.V. If Hyland is Hyland Software Mexico S. de R.L. de C.V., the following term shall apply: Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the Restricted Individual’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees.
5. Hyland Switzerland SARL. If Hyland is Hyland Switzerland SARL, the following term shall apply: Each violation of this provision by a part entitles the other to a payment in an amount equal to Fifty Thousand Swiss Francs (CHF50,000.00), and all costs associated with the collection of such payment, including but not limited to attorneys’ fees.
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following term shall apply:
During the term of the Agreement, Customer will not:
(a) solicit for employment or for engagement as an independent contractor for itself or for any other third party a person who is an employee of Hyland, or otherwise encourage or assist any such person to leave the employ of Hyland for any reason; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the Customer had contact or who became known to the Customer in connection with the Agreement; and (ii) who is an employee of Hyland;
(c) Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to this Section.
For any other Hyland company not referenced in this Exhibit B, the Non-Solicitation; Non-Hire provision does not apply.
Exhibit C
Hyland Software Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., the following Section (Australian Consumer Law) shall be added to the General Terms Schedule:
Australian Consumer Law. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
Exhibit D
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit D shall apply:
The termination of the Agreement by the innocent party in accordance with Section 1.2.1 above shall in no event entitle the infringing and/or insolvent party to claim any compensation and/or an indemnity whatsoever and the parties expressly hereby agree and declare that the term is reasonable, sufficient and suitable to the nature of the business and/or activity to be performed by the parties hereunder.
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall be subject to a fine of ten percent (10%) on top of the due amount, adjusted by the IPCA, plus late payment interest at the rate of one and one percent (1%) per month calculated pro rata die from the date due through the date that such past due amounts, such fine, and such accrued interest are paid in full. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
Customer agrees that Articles 4 and 5 of the Brazilian Software Law (Law No. 9,609/98) DO NOT apply to the Agreement.
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
1. Section 6.1 of the Agreement (Limitation of Liability) shall be replaced in its entirety as follows:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. The Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under the Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S., the following Section (Exclusion of Unpredictability) shall be added to the General Terms Schedule:
The parties declare to measure and accept the risks inherent in the execution of the Contract. By express agreement, the parties waive the application of the provisions of Article 1195 of the Civil Code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including, if applicable, the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, or Documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services, or prepare derivative works therefrom, unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs (see 69e of the German Copyright Act) or decompiling or reproducing the Software according to the provisions of sec. 69d of the German Copyright Act.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THE AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in the Agreement, neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment of monetary claims following sec. 354a German Commercial Code shall remain unaffected.
Notwithstanding the foregoing, Hyland and/or any of its affiliates may perform any of Hyland's obligations contemplated by the Agreement.
In the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement. The parties will agree on the replacement of the invalid contractual provision by an appropriate provision which comes as close as possible to what the parties to the Agreement would have wanted, had they considered the point.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. The Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under this Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. The Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under the Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective October 4th 2023 to February 12th 2024
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (these “General Terms” or this “General Terms Schedule”) is part of the Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this General Terms Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this General Terms Schedule, as well as any other terms or documents incorporated within the Incorporating Document.
This General Terms Schedule includes terms that will apply to any product license or service Customer purchases from Hyland under another schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this General Terms Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term of the Agreement and Product Subscription(s). The Agreement shall have a term commencing on the Effective Date and will continue for until all Product Subscriptions have expired or been terminated. The term of a Product Subscription shall be the Initial Term, and such term shall automatically renew for additional periods of one (1) year unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the then-current term. In the event Customer purchases add-on licenses or services to a Product Subscription via an Order Form or purchase order, the term of such add-on licenses or service shall run coterminous with the existing applicable Product Subscription, unless otherwise stated via an Order Form.
1.2 Termination By Either Party.
1.2.1 Either party may terminate the Agreement effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User restrictions, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of the Agreement will be in violation of any law or regulation implemented or modified after the Effective Date, Customer or Hyland, as the case may be, may terminate the applicable license or services under the Agreement, upon thirty (30) days written notice to the other party.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including a party’s obligation to pay any fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect. For clarity, this includes all provisions under this General Terms Schedule, other than the Marketing and Publicity provision.
1.3.3. Additional Effects or Consequences of Termination. Upon termination of the Agreement, any license to use the Software or Hyland Cloud Service will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (a) discontinue any and all use of the Software, Documentation, and, if applicable, Hyland Cloud Service; and (b) in the case of Software and Documentation within Customer’s control, either: (i) return the Software and Documentation to Hyland, or (ii) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
2. PAYMENT TERMS.
2.1 Invoicing. All invoices shall be sent electronically by Hyland to the other party to the attention of “Accounts Payable,” or to such other person or department as the other party may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.2 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement, except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts. With respect to any annual fees, Hyland may increase or decrease the fees invoiced if the value of the currency used, determined based on the currency’s exchange rate to USD as tracked and published by the Wall Street Journal, has fluctuated by ten percent (10%) or more between the beginning of the prior annual period and the applicable invoice date.
2.3 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.4 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), that are timely disputed in accordance with this Section, both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. Any amounts not timely disputed in accordance with the preceding sentence shall be deemed to be undisputed and shall be payable in accordance with the terms of the Agreement. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which the invoiced party has provided written notice to Hyland, prior to the invoice due date, setting forth the such party’s good faith objections to payment of such amounts.
2.5 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except properly Disputed Amounts in accordance with the Agreement) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including, if applicable, the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.6 Currency; Delivery of Tangible Keys and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in the currency identified in the applicable Order Form or purchase order accepted by Hyland. Delivery of tangible keys or CDs, if any, shall be F.O.B. Hyland’s (or its affiliate's) offices.
2.7 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently, https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with the Agreement. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training or the Effective Date of the applicable Order Form for such training, whichever is earlier.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information disclosed hereunder that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership. Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services or Documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S OR COMMUNITY CONNECT USER’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT (AS THE CASE MAY BE) IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES OR EQUIPMENT DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES AND EQUIPMENT ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(a) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000.00 bodily injury each accident, USD $1,000,000.00 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer’s Liability Insurance Coverage shall be GBP 5,000,000.00;
(b) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD$1,000,000.00 per occurrence and USD $2,000,000.00 in aggregate;
(c) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(d) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(e) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Affiliate Rights. Affiliates of Customer will have rights to use the Software or Hyland Cloud Services purchased pursuant to an Order Form to the extent such Affiliate(s) are identified on such Order Form (an "Authorized Affiliate"). The Customer shall be responsible for any breaches of the Agreement by any such Authorized Affiliate as if such Authorized Affiliate was the Customer.
9.2 Governing Law; Jurisdiction. See the Governing Law; Jurisdiction Exhibit available attached hereto as Exhibit A.
9.3 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.4 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.5 Integration. The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The parties specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.6 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (a) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or the last known business address of such party; or (b) email to the address specified in the Agreement or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all notices shall also be sent with copy to:
Hyland Software, Inc.
28105 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@hyland.com
9.7 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in the Agreement, neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Notwithstanding anything to the contrary, Hyland may assign the Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment made without compliance with the section shall be null and void and of no force or effect. The parties agree that Hyland may assign or subcontract all or part of its obligations contemplated by the Agreement to a Hyland affiliate.
9.8 Severability. If any provision of the Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
9.9 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.10 Independent Contractor. The parties hereto are independent contractors under the Agreement and nothing in the Agreement (or any Schedule hereto) authorizes a party to act as a legal representative or agent of the other party for any purpose or to commit the other party to any obligations with a third party, including, but not limited to, any obligations related to such other party’s employees. It is expressly understood that the Agreement does not establish a franchise relationship, partnership, principal-agent relationship or joint venture.
9.11 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer hereto agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export Hyland’s Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use Hyland’s Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.12 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights may not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance and/or injunctive relief to enforce the provisions of the Agreement.
9.13 Non-Solicitation; No-Hire. See the Non-Solicitation; No-Hire Schedule attached hereto as Exhibit B.
9.14 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, the Software, Customer's use of the Software, the benefits Customer has derived from the Software or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland's expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the Software solution established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which the Software will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically permitted herein, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.15 Counterparts. The Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the Agreement.
9.16 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.17 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.18 GRaaS Services. If Customer is purchasing GRaaS Services, GRaaS Services are not governed by the terms of the Agreement, but instead are subject to the GRaaS Services Terms and Conditions, which are available at https://www.hyland.com/en/legal/graas-terms-conditions.
9.19 Hyland Content Portal. If Customer is purchasing Hyland Content Portal, Hyland Content Portal is not governed by the terms of the Agreement, but instead is subject to the Hyland Content Portal Terms of Use, which are available at https://legal.hyland.com/Customer-Legal-Center#hyland-portal-termsandconditions.
9.20 Additional Terms and Conditions. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
| Hyland Company | Hyland Company |
Hyland Software Australia Pty Ltd. Hyland Software Brasil LTDA. Hyland Colombia S.A.S. Hyland France S.A.S. Hyland Software Germany GmbH Hyland Mexico S. de R.L. de C.V. Hyland Software, Inc., if Customer is located in Peru | Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I |
9.21 Controlling Language. Hyland may make other versions of this General Terms Schedule available in other languages at this online location. This English language version of this General Terms Schedule controls over any version of the General Terms Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this General Terms Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the General Terms Schedule that may be made available at this online location in another language.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Affiliate” of the Customer means an entity that has control of, is under control by, or is under common control with the Customer, either directly or indirectly through one or more other entities that have control of, are under control by, or are under common control with the Customer. The term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity through the ownership of at least 50% of voting securities.
“Customer” means the person or entity set forth on the Order Form.
“Effective Date” means the date the Incorporating Document is executed by the last party to sign the Incorporating Document.
“GraaS Services” means the Policy Center Solution and Data Sets to which Customer has purchased a subscription under an Order Form, which are available at https://www.hyland.com/en/legal/graas-terms-conditions.
“Hyland Content Portal” means: (a) a portal solution that comprises of both content, via portal pages, and online forms enabling Customer to manage content, forms and data in one centralized place; and (b) is hosted by a third party software vendor of Hyland.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Initial Term” is defined in the applicable Order Form under which Customer has purchased the applicable Product Subscription(s).
“Order Form” means a document signed by authorized representatives of each party describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (a) in violation of the license provisions of any Schedule of the Agreement; (b) contrary to the ownership provision of the General Terms; (c) in violation of the Prohibited Conduct provisions of the General Terms; or (d) in violation of any term of the Agreement that is identified to be a Prohibited Act.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products identified in an Order Form and/or for which Customer submits a written purchase order to Hyland (or an authorized channel partner, if applicable) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement or an agreement with one of Hyland’s authorized Channel Partners, as the case may be. Software does not include Alfresco Community Versions, Hyland Content Portal or GraaS Services.
Exhibit A
Governing Law; Jurisdiction Schedule
The Governing Law; Jurisdiction Section of the General Terms Schedule shall be the term set forth on this Exhibit A based upon the applicable Hyland company listed below:
1. Hyland Software, Inc. If Hyland is Hyland Software, Inc., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio U.S.A. (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio U.S.A.
provided, that if Hyland Software, Inc. is Hyland and is providing services within the following countries, the terms identified below shall apply:
(a) Peru. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Republic of Peru, except for the Conflicts of Laws (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. In the event of any controversy in connection with the Agreement, including its interpretation, validity and existence, such controversy shall be resolved by arbitration of law, under the rules of the Arbitration Court of the Lima Chamber of Commerce. The arbitration panel shall be conformed by three arbitrators designated in accordance to such rules. Each Party may designate one arbitrator, and the two arbitrators son designated shall designate a third arbitrator who will act as the president of the panel.
(b) Singapore. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the Republic of Singapore (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Singapore.
2. Hyland Australia Pty Ltd. If Hyland is Hyland Australia Pty Ltd., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia, without regard to: (a) conflict of law provisions, to the extent such principles or rules would require the application of the laws of any jurisdiction other than the laws of Victoria, Australia; and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which the Parties intend to expressly exclude from the Agreement. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Victoria, Australia.
3. Hyland Software Brasil Ltda. If Hyland is Hyland Software Brasil Ltda., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Federative Republic of Brazil (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the central courts of the City of São Paulo.
4. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following term shall apply: The Agreement, and all claims or causes of action (whether in contract, tort, equity or statute) that may be based upon, arise out of or relate to the Agreement, or the negotiation, execution or performance of the Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with the Agreement or as an inducement to enter into the Agreement), shall be governed by and construed in accordance with the laws of the Province of Ontario and Canada, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Ontario and Canada, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. All disputes arising out of or in connection with the Agreement, including injunctive or other preliminary or interlocutory measures, will be resolved by the Courts of the Province of Ontario, to the exclusion of the jurisdiction of any other courts. The Parties agree to submit to the sole jurisdiction of the Courts of the Province of Ontario and will not raise any objection to the forum nor the jurisdiction of the Courts of the Province of Ontario.
5. Hyland Colombia S.A.S. If Hyland is Hyland Colombia S.A.S., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of Colombian legislation (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. In the event of any controversy, claim, action, suit, proceeding or dispute, in connection with the Agreement, including its interpretation, validity and existence, such controversy shall be resolved by arbitration of law, under the rules of the Arbitration Rules of the International Chamber of Commerce. The arbitration panel shall be conformed by arbitrators designated in accordance with such rules. The seat of the arbitral tribunal will be the city of Bogotá D.C. in Colombia, and will decide applying Colombian legislation.
6. Hyland France S.A.S. If Hyland is Hyland France S.A.S., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of France and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the commercial Courts of Paris (“Tribunal de Commerce”).
7. Hyland Japan G.K. If Hyland is Hyland Japan G.K., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of Japan (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the commercial Courts of Japan.
8. Hyland Software Germany GmbH. If Hyland is Hyland Software Germany GmbH, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the Laws of the Federal Republic of Germany (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Berlin, Germany.
9. Hyland Italy S.R.L. If Hyland is Hyland Italy S.R.L., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Italy (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Milano, Italy.
10. Hyland Software Malta Ltd. If Hyland is Hyland Software Malta Ltd., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Malta (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with this agreement will be subject to the jurisdiction of the Maltese Courts, to the exclusion of the jurisdiction of any other courts.
11. Hyland Software Mexico S. de R.L. de C.V. If Hyland is Hyland Software Mexico S. de R.L. de C.V., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Mexico (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with the agreement will be resolved by the competent courts sitting in Mexico City.
12. Hyland Netherlands B.V. If Hyland is Hyland Netherlands B.V., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Netherlands (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the competent courts of Amsterdam.
13. Hyland New Zealand Limited. If Hyland is Hyland New Zealand Limited, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall be governed by and construed in accordance with the laws of New Zealand, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of New Zealand, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. The Parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Agreement.
14. Hyland Poland Spolka Z.O.O.If Hyland is Hyland Poland Spolka Z.O.O., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Poland (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the common court having jurisdiction at the registered seat of Hyland.
15. Hyland Portugal, LDA. If Hyland is Hyland Portugal, LDA, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Portugal (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with the Agreement will be subject to the jurisdiction of the judicial courts of Lisbon, Portugal, to the exclusion of the jurisdiction of any other courts.
16. Hyland Spain S.L.U. If Hyland is Hyland Spain S.L.U., the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Spain (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of Madrid, Spain.
17. Hyland Switzerland SARL. If Hyland is Hyland Switzerland SARL, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Switzerland (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. The Parties hereby submit to the exclusive jurisdiction and venue of the courts at the registered seat of Hyland.
18. Hyland UK Operations Limited. If Hyland is Hyland UK Operations Limited, the following term shall apply: The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of England and Wales (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the courts of general jurisdiction located in London, England.
Exhibit B
Non-Solicitation; No-Hire Schedule
The Non-Solicitation; No-Hire Section of the General Terms Schedule shall be the term set forth on this Exhibit B:
During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to subsection (a) above. The parties agree that this provision survives the termination of the Agreement.
(d) subsection (d) of the Non-Solicitation; No-Hire Section of the Agreement shall be the term set forth on this Exhibit B based upon the applicable Hyland company listed below:
1. Hyland Software, Inc. If Hyland is Hyland Software, Inc. (except to the extent Customer is located in Peru), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, or Hyland Poland Spolka Z.O.O., the following term shall apply:
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees.
2. Hyland Software Brasil Ltda. If Hyland is Hyland Software Brasil Ltda, the following term shall apply: Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to One Hundred Ninety Thousand Real (R$190,000.00), and all costs associated with the collection of such liquidated damages, including but not limited to reasonable attorneys’ fees.
3. Hyland Software Germany GmbH. If Hyland is Hyland Software Germany GmbH, the following term shall apply: Each culpable violation of this provision by a party entitles the other to a payment in an amount equal to Fifty Thousand Euros (€50,000.00), and all costs associated with the collection of such payment, including but not limited to attorneys’ fees.
Additionally, notwithstanding anything to the contrary in this Exhibit B, subsection (c) above should be amended and replaced in its entirety as follows: A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation or an engagement pursuant to subsections (a) and (b). The parties agree that this provision survives the termination of the Agreement.
4. Hyland Software Mexico S. de R.L. de C.V. If Hyland is Hyland Software Mexico S. de R.L. de C.V., the following term shall apply: Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the Restricted Individual’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees.
5. Hyland Switzerland SARL. If Hyland is Hyland Switzerland SARL, the following term shall apply: Each violation of this provision by a part entitles the other to a payment in an amount equal to Fifty Thousand Swiss Francs (CHF50,000.00), and all costs associated with the collection of such payment, including but not limited to attorneys’ fees.
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following term shall apply:
During the term of the Agreement, Customer will not:
(a) solicit for employment or for engagement as an independent contractor for itself or for any other third party a person who is an employee of Hyland, or otherwise encourage or assist any such person to leave the employ of Hyland for any reason; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the Customer had contact or who became known to the Customer in connection with the Agreement; and (ii) who is an employee of Hyland;
(c) Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to this Section.
For any other Hyland company not referenced in this Exhibit B, the Non-Solicitation; Non-Hire provision does not apply.
Exhibit C
Hyland Software Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., the following Section (Australian Consumer Law) shall be added to the General Terms Schedule:
Australian Consumer Law. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
Exhibit D
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit D shall apply:
The termination of the Agreement by the innocent party in accordance with Section 1.2.1 above shall in no event entitle the infringing and/or insolvent party to claim any compensation and/or an indemnity whatsoever and the parties expressly hereby agree and declare that the term is reasonable, sufficient and suitable to the nature of the business and/or activity to be performed by the parties hereunder.
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall be subject to a fine of ten percent (10%) on top of the due amount, adjusted by the IPCA, plus late payment interest at the rate of one and one percent (1%) per month calculated pro rata die from the date due through the date that such past due amounts, such fine, and such accrued interest are paid in full. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
Customer agrees that Articles 4 and 5 of the Brazilian Software Law (Law No. 9,609/98) DO NOT apply to the Agreement.
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
1. Section 6.1 of the Agreement (Limitation of Liability) shall be replaced in its entirety as follows:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. The Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under the Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S., the following Section (Exclusion of Unpredictability) shall be added to the General Terms Schedule:
The parties declare to measure and accept the risks inherent in the execution of the Contract. By express agreement, the parties waive the application of the provisions of Article 1195 of the Civil Code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including, if applicable, the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, or Documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services, or prepare derivative works therefrom, unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs (see 69e of the German Copyright Act) or decompiling or reproducing the Software according to the provisions of sec. 69d of the German Copyright Act.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THE AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in the Agreement, neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment of monetary claims following sec. 354a German Commercial Code shall remain unaffected.
Notwithstanding the foregoing, Hyland and/or any of its affiliates may perform any of Hyland's obligations contemplated by the Agreement.
In the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement. The parties will agree on the replacement of the invalid contractual provision by an appropriate provision which comes as close as possible to what the parties to the Agreement would have wanted, had they considered the point.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. The Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under this Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The Agreement constitutes the entire Agreement among the parties with respect to the subject matter of the Agreement, including any schedules, Order Forms, or attachments that may be referenced. No provision of the Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. The Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. The Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under the Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 2nd 2023 to October 4th 2023
DownloadTable of Contents
GENERAL TERMS SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this General Terms Schedule (these “General Terms” or this “General Terms Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this General Terms Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this General Terms Schedule.
This General Terms Schedule includes terms that will apply to any product license or service Customer purchases from Hyland under another schedule that is made a part of this Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this General Terms Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of this Agreement, they are not applicable until defined in an amendment to this Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. This Agreement shall have a term commencing on the Effective Date and will continue for until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate this Agreement in its entirety or any Order Form or Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of this Agreement or any Order Form or Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User restrictions, all of which are considered for all purposes to be material provisions of this Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of this Agreement, an Order Form or any Schedule (if any) will not discharge or otherwise affect any pre-termination obligations of either party existing under this Agreement or the applicable Order Form at the time of termination, including a party’s obligation to pay any fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of this Agreement or the applicable Order Form or Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of this Agreement or of an applicable Order Form or Schedule, which by their nature extend beyond the expiration or termination of this Agreement will survive and remain in effect. For clarity, this includes all provisions under this General Terms Schedule, other than the Marketing and Publicity provision.
1.3.3. Termination of an Order Form or Schedule. If any Order Form or Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Order Form or Schedule. Otherwise, termination of an Order Form or Schedule will not affect the remaining Order Forms or Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when this Agreement is signed by both parties, the parties will treat this Agreement as: (a) Customer’s written purchase order for the matters described herein, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to the other party to the attention of “Accounts Payable,” or to such other person or department as the other party may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under this Agreement (including any Services Proposal or Order Form), except as otherwise provided in this Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts. With respect to any annual fees, Hyland may increase or decrease the fees invoiced if the value of the currency used, determined based on the currency’s exchange rate to USD as tracked and published by the Wall Street Journal, has fluctuated by ten percent (10%) or more between the beginning of the prior annual period and the applicable invoice date.
2.4 Taxes and Governmental Charges. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), that are timely disputed in accordance with this Section, both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. Any amounts not timely disputed in accordance with the preceding sentence shall be deemed to be undisputed and shall be payable in accordance with the terms of this Agreement. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which the invoiced party has provided written notice to Hyland, prior to the invoice due date, setting forth the such party’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except properly Disputed Amounts in accordance with this Agreement) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under this Agreement or any Services Proposal, including, if applicable, the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 Currency; Delivery of Hasps and CDs. All fees, costs and expenses under this Agreement shall be determined and invoiced in, and all payments required to be made in connection with this Agreement shall be made in the currency identified in the applicable Order Form. Delivery of Hasps or CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently, https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with this Agreement. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training or the Effective Date of the applicable Order Form for such training, whichever is earlier.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information disclosed hereunder that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership. Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in this Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services or Documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in this Agreement is authorized unless it is set forth in writing, references this Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S OR COMMUNITY CONNECT USER’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT (AS THE CASE MAY BE) IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES OR EQUIPMENT DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES AND EQUIPMENT ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES OR EQUIPMENT.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to this Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under this Agreement is postponed or extended pursuant to this Section for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(a) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000.00 bodily injury each accident, USD $1,000,000.00 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer’s Liability Insurance Coverage shall be GBP 5,000,000.00;
(b) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD$1,000,000.00 per occurrence and USD $2,000,000.00 in aggregate;
(c) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(d) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(e) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Affiliate Rights. Affiliates of Customer will have rights to use the Software or Hyland Cloud Services purchased pursuant to an Order Form to the extent such Affiliate(s) are identified on such Order Form. The Customer shall be responsible for any breaches of this Agreement by any such Affiliate as if such Affiliate was the Customer.
9.2 Governing Law; Jurisdiction. See the Governing Law; Jurisdiction Exhibit available attached hereto as Exhibit A.
9.3 Interpretation. The headings used in this Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to this Agreement.
9.4 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.5 Integration. This Agreement constitutes the entire Agreement among the parties with respect to the subject matter of this Agreement, including any schedules, order forms, or attachments that may be referenced. No provision of this Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. This Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. This Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. Customer acknowledges and agrees in entering into this Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The parties specifically acknowledge and agree that any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. This Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.6 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under this Agreement shall be deemed effective when made in writing and sent to each party, by either: (a) reputable overnight courier, specifying next day delivery to the address specified in the Order Form or the last known business address of such party; or (b) email to the address specified in the Order Form or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all notices shall also be sent with copy to:
Hyland Software, Inc.
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@hyland.com
9.7 Binding Effect; No Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in this Agreement, neither party may assign, transfer or sublicense all or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of this Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under this Agreement. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment made without compliance with the section shall be null and void and of no force or effect. The parties agree that Hyland may assign or subcontract all or part of its obligations contemplated by this Agreement to a Hyland affiliate.
9.8 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
9.9 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.10 Independent Contractor. The parties hereto are independent contractors under this Agreement and nothing in this Agreement (or any Schedule hereto) authorizes a party to act as a legal representative or agent of the other party for any purpose or to commit the other party to any obligations with a third party, including, but not limited to, any obligations related to such other party’s employees. It is expressly understood that this Agreement does not establish a franchise relationship, partnership, principal-agent relationship or joint venture.
9.11 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer hereto agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export Hyland’s Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, or the U.S. Department of Treasury maintains any commercial activities sanctions program. Customer shall not use Hyland’s Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.12 Injunctive Relief. The parties to this Agreement recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights may not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance and/or injunctive relief to enforce the provisions of this Agreement.
9.13 Non-Solicitation; No-Hire. See the Non-Solicitation; No-Hire Schedule attached hereto as Exhibit B.
9.14 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, the Software, Customer's use of the Software, the benefits Customer has derived from the Software or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland's expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of this Agreement, the scope of the relationship and the Software solution established under this Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which the Software will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically permitted herein, or as necessary to perform its obligations under this Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of this Agreement, in any advertising or publicity release or promotional literature.
9.15 Counterparts. This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the Agreement.
9.16 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with this Agreement and the transactions contemplated hereby.
9.17 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
9.18 GRaaS Services. If Customer is purchasing GRaaS Services, GRaaS Services are not governed by the terms of this Agreement, but instead are subject to the GRaaS Services Terms and Conditions, which are available at https://www.hyland.com/en/legal/graas-terms-conditions.
9.19 Hyland Content Portal. If Customer is purchasing Hyland Content Portal, Hyland Content Portal is not governed by the terms of this Agreement, but instead is subject to the Hyland Content Portal Terms of Use, which are available at https://legal.hyland.com/Customer-Legal-Center#hyland-portal-termsandconditions.
9.20 Additional Terms and Conditions. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Australia Pty Ltd. Exhibit C
Hyland Software Brasil Ltda. Exhibit D
Hyland Colombia S.A.S. Exhibit E
Hyland France S.A.S. Exhibit F
Hyland Software Germany GmbH Exhibit G
Hyland Mexico S. de R.L. de C.V. Exhibit H
Hyland Software, Inc., if Customer is located in Peru Exhibit I
9.21 Controlling Language. Hyland may make other versions of this General Terms Schedule available in other languages at this online location. This English language version of this General Terms Schedule controls over any version of the General Terms Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this General Terms Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the General Terms Schedule that may be made available at this online location in another language.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout this Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Affiliate” of the Customer means an entity that has control of, is under control by, or is under common control with the Customer, either directly or indirectly through one or more other entities that have control of, are under control by, or are under common control with the Customer. The term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity through the ownership of at least 50% of voting securities.
“Customer” means the person or entity set forth on the Order Form.
“Effective Date” means (a) the date the initial Order Form is executed by the last party to execute, and (b) as used in any Schedule that is added to this Agreement after the Effective Date as described in (a) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, or an Order Form which incorporates such amendment or Schedule by reference, as determined based upon the dates set forth after their respective signatures.
“GraaS Services” means the Policy Center Solution and Data Sets to which Customer has purchased a subscription under an Order Form, which are available at https://www.hyland.com/en/legal/graas-terms-conditions.
“Hyland Content Portal” means: (a) a portal solution that comprises of both content, via portal pages, and online forms enabling Customer to manage content, forms and data in one centralized place; and (b) is hosted by a third party software vendor of Hyland.
“Incorporating Document” means the Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this General Terms Schedule by reference.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement (including any Services Proposal).
“Initial Term” means (a) the initial term for which Customer has purchased particular products or services as set forth on the applicable Order Form for such product or service; if there is no Order Form or the Order Form does not state an initial term, the Initial Term shall be the three (3) year period that begins on the date of Hyland’s acceptance of the applicable Purchase Order or the Effective Date of the Order Form, as applicable; and (b) with respect to any Schedule that governs the products or services purchased, shall be the Initial Term as defined in (a).
“Order Form” means a document signed by authorized representatives of each party describing the Software or other products or services purchased, associated fees, and other terms agreed to by the parties.
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (a) in violation of the license provisions of any Schedule of this Agreement; (b) contrary to the ownership provision of the General Terms; (c) in violation of the Prohibited Conduct provisions of the General Terms; or (d) in violation of any term of any Schedule or Order Form that is identified within that Schedule or Order Form to be a Prohibited Act.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products identified in an Order Form for which Customer submits a written purchase order to Hyland (or an authorized channel partner, if applicable) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to this Agreement or an agreement with one of Hyland’s authorized Channel Partners, as the case may be. Software does not include Alfresco Community Versions, Hyland Content Portal or GraaS Services.
Exhibit A
Governing Law; Jurisdiction Schedule
The Governing Law; Jurisdiction Section of the General Terms Schedule shall be the term set forth on this Exhibit A based upon the applicable Hyland company listed below:
1. Hyland Software, Inc. If Hyland is Hyland Software, Inc., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio U.S.A. (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio U.S.A.
provided, that if Hyland Software, Inc. is Hyland and is providing services within the following countries, the terms identified below shall apply:
(a) Peru. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Republic of Peru, except for the Conflicts of Laws (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. In the event of any controversy in connection with this Agreement, including its interpretation, validity and existence, such controversy shall be resolved by arbitration of law, under the rules of the Arbitration Court of the Lima Chamber of Commerce. The arbitration panel shall be conformed by three arbitrators designated in accordance to such rules. Each Party may designate one arbitrator, and the two arbitrators son designated shall designate a third arbitrator who will act as the president of the panel.
(b) Singapore. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the Republic of Singapore (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the courts of Singapore.
2. Hyland Australia Pty Ltd. If Hyland is Hyland Australia Pty Ltd., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia, without regard to: (a) conflict of law provisions, to the extent such principles or rules would require the application of the laws of any jurisdiction other than the laws of Victoria, Australia; and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which the Parties intend to expressly exclude from this Agreement. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the courts of Victoria, Australia.
3. Hyland Software Brasil Ltda. If Hyland is Hyland Software Brasil Ltda., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Federative Republic of Brazil (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the central courts of the City of São Paulo.
4. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following term shall apply: This Agreement, and all claims or causes of action (whether in contract, tort, equity or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the laws of the Province of Ontario and Canada, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Ontario and Canada, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. All disputes arising out of or in connection with this Agreement, including injunctive or other preliminary or interlocutory measures, will be resolved by the Courts of the Province of Ontario, to the exclusion of the jurisdiction of any other courts. The Parties agree to submit to the sole jurisdiction of the Courts of the Province of Ontario and will not raise any objection to the forum nor the jurisdiction of the Courts of the Province of Ontario.
5. Hyland Colombia S.A.S. If Hyland is Hyland Colombia S.A.S., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of Colombian legislation (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. In the event of any controversy, claim, action, suit, proceeding or dispute, in connection with this Agreement, including its interpretation, validity and existence, such controversy shall be resolved by arbitration of law, under the rules of the Arbitration Rules of the International Chamber of Commerce. The arbitration panel shall be conformed by arbitrators designated in accordance with such rules. The seat of the arbitral tribunal will be the city of Bogotá D.C. in Colombia, and will decide applying Colombian legislation.
6. Hyland France S.A.S. If Hyland is Hyland France S.A.S., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of France and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the commercial Courts of Paris (“Tribunal de Commerce”).
7. Hyland Japan G.K. If Hyland is Hyland Japan G.K., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of Japan (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the commercial Courts of Japan.
8. Hyland Software Germany GmbH. If Hyland is Hyland Software Germany GmbH, the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the Laws of the Federal Republic of Germany (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the courts of Berlin, Germany.
9. Hyland Italy S.R.L. If Hyland is Hyland Italy S.R.L., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Italy (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the courts of Milano, Italy.
10. Hyland Software Malta Ltd. If Hyland is Hyland Software Malta Ltd., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Malta (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with this agreement will be subject to the jurisdiction of the Maltese Courts, to the exclusion of the jurisdiction of any other courts.
11. Hyland Software Mexico S. de R.L. de C.V. If Hyland is Hyland Software Mexico S. de R.L. de C.V., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Mexico (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with this agreement will be resolved by the competent courts sitting in Mexico City.
12. Hyland Netherlands B.V. If Hyland is Hyland Netherlands B.V., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of the Netherlands (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the competent courts of Amsterdam.
13. Hyland New Zealand Limited. If Hyland is Hyland New Zealand Limited, the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall be governed by and construed in accordance with the laws of New Zealand, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of New Zealand, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. The Parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
14. Hyland Poland Spolka Z.O.O.If Hyland is Hyland Poland Spolka Z.O.O., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Poland (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the common court having jurisdiction at the registered seat of Hyland.
15. Hyland Portugal, LDA. If Hyland is Hyland Portugal, LDA, the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Portugal (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. All disputes arising out of or in connection with this Agreement will be subject to the jurisdiction of the judicial courts of Lisbon, Portugal, to the exclusion of the jurisdiction of any other courts.
16. Hyland Spain S.L.U. If Hyland is Hyland Spain S.L.U., the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Spain (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the courts of Madrid, Spain.
17. Hyland Switzerland SARL. If Hyland is Hyland Switzerland SARL, the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of Switzerland (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. The Parties hereby submit to the exclusive jurisdiction and venue of the courts at the registered seat of Hyland.
18. Hyland UK Operations Limited. If Hyland is Hyland UK Operations Limited, the following term shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive Laws of England and Wales (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the courts of general jurisdiction located in London, England.
Exhibit B
Non-Solicitation; No-Hire Schedule
The Non-Solicitation; No-Hire Section of the General Terms Schedule shall be the term set forth on this Exhibit B:
During the term of this Agreement and for one (1) year after the expiration or termination of this Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with this Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to subsection (a) above. The parties agree that this provision survives the termination of the Agreement.
(d) subsection (d) of the Non-Solicitation; No-Hire Section of this Agreement shall be the term set forth on this Exhibit B based upon the applicable Hyland company listed below:
1. Hyland Software, Inc. If Hyland is Hyland Software, Inc. (except to the extent Customer is located in Peru), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, or Hyland Poland Spolka Z.O.O., the following term shall apply:
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees.
2. Hyland Software Brasil Ltda. If Hyland is Hyland Software Brasil Ltda, the following term shall apply: Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to One Hundred Ninety Thousand Real (R$190,000.00), and all costs associated with the collection of such liquidated damages, including but not limited to reasonable attorneys’ fees.
3. Hyland Software Germany GmbH. If Hyland is Hyland Software Germany GmbH, the following term shall apply: Each culpable violation of this provision by a party entitles the other to a payment in an amount equal to Fifty Thousand Euros (€50,000.00), and all costs associated with the collection of such payment, including but not limited to attorneys’ fees.
Additionally, notwithstanding anything to the contrary in this Exhibit B, subsection (c) above should be amended and replaced in its entirety as follows: A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation or an engagement pursuant to subsections (a) and (b). The parties agree that this provision survives the termination of the Agreement.
4. Hyland Software Mexico S. de R.L. de C.V. If Hyland is Hyland Software Mexico S. de R.L. de C.V., the following term shall apply: Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the Restricted Individual’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees.
5. Hyland Switzerland SARL. If Hyland is Hyland Switzerland SARL, the following term shall apply: Each violation of this provision by a part entitles the other to a payment in an amount equal to Fifty Thousand Swiss Francs (CHF50,000.00), and all costs associated with the collection of such payment, including but not limited to attorneys’ fees.
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following term shall apply:
During the term of this Agreement, Customer will not:
(a) solicit for employment or for engagement as an independent contractor for itself or for any other third party a person who is an employee of Hyland, or otherwise encourage or assist any such person to leave the employ of Hyland for any reason; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the Customer had contact or who became known to the Customer in connection with this Agreement; and (ii) who is an employee of Hyland;
(c) Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to this Section.
For any other Hyland company not referenced in this Exhibit B, the Non-Solicitation; Non-Hire provision does not apply.
Exhibit C
Hyland Software Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., the following Section (Australian Consumer Law) shall be added to the General Terms Schedule:
Australian Consumer Law. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
Exhibit D
Hyland Software Brasil Ltda Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda, this Exhibit D shall apply:
The termination of this Agreement by the innocent party in accordance with Section 1.2.1 above shall in no event entitle the infringing and/or insolvent party to claim any compensation and/or an indemnity whatsoever and the parties expressly hereby agree and declare that the term is reasonable, sufficient and suitable to the nature of the business and/or activity to be performed by the parties hereunder.
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall be subject to a fine of ten percent (10%) on top of the due amount, adjusted by the IPCA, plus late payment interest at the rate of one and one percent (1%) per month calculated pro rata die from the date due through the date that such past due amounts, such fine, and such accrued interest are paid in full. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under this Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
Customer agrees that Articles 4 and 5 of the Brazilian Software Law (Law No. 9,609/98) DO NOT apply to this Agreement.
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
1. Section 6.1 of the Agreement (Limitation of Liability) shall be replaced in its entirety as follows:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
This Agreement constitutes the entire Agreement among the parties with respect to the subject matter of this Agreement, including any schedules, order forms, or attachments that may be referenced. No provision of this Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. This Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. This Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under this Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S., the following Section (Exclusion of Unpredictability) shall be added to the General Terms Schedule:
The parties declare to measure and accept the risks inherent in the execution of the Contract. By express agreement, the parties waive the application of the provisions of Article 1195 of the Civil Code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under this Agreement or any Services Proposal, including, if applicable, the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, or Documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, or Add-On Services, or prepare derivative works therefrom, unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs (see 69e of the German Copyright Act) or decompiling or reproducing the Software according to the provisions of sec. 69d of the German Copyright Act.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THIS AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in this Agreement, neither party may assign, transfer or sublicense all or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of this Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under this Agreement. Any assignment made without compliance with the section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment of monetary claims following sec. 354a German Commercial Code shall remain unaffected.
Notwithstanding the foregoing, Hyland and/or any of its affiliates may perform any of Hyland's obligations contemplated by this Agreement.
In the event any provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of this Agreement. The parties will agree on the replacement of the invalid contractual provision by an appropriate provision which comes as close as possible to what the parties to the Agreement would have wanted, had they considered the point.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
This Agreement constitutes the entire Agreement among the parties with respect to the subject matter of this Agreement, including any schedules, order forms, or attachments that may be referenced. No provision of this Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. This Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. This Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under this Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
This Agreement constitutes the entire Agreement among the parties with respect to the subject matter of this Agreement, including any schedules, order forms, or attachments that may be referenced. No provision of this Agreement will be deemed waived, amended or modified by any of the parties, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of all the parties. This Agreement supersedes all previous agreements between or among any of the parties relating to the subject matter hereof. This Agreement shall not be supplemented or modified by any Course of Performance, Course of Dealing or Trade Usage. As used herein, "Course of Performance" means a sequence of conduct between the parties under this Agreement that exists if (a) it involves repeated occasions for performance by a party and (b) the other party, with knowledge of the nature of the performance and having the opportunity for objection to it, accepts the performance or acquiesces in it without objection; "Course of Dealing" means a sequence of conduct between the parties that concerns previous transactions between them that may be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct; and “Trade Usage” means a trade practice that is so usual or customary that an expectation of it being followed in a particular commercial transaction is justified.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective December 7th 2022 to June 2nd 2023
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference. This General Terms Schedule includes terms that will apply to any product license or service you purchase from Hyland under another Schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. The Agreement shall have a term commencing on the Effective Date and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate the Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 9.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when the Agreement is signed by both parties, the parties will treat the Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement (including any Services Proposal), except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts. With respect to any annual fees, Hyland may increase or decrease the fees invoiced if the value of the currency used, determined based on the currency’s exchange rate to USD as tracked and published by the Wall Street Journal, has fluctuated by ten percent (10%) or more between the beginning of the prior annual period and the applicable invoice date.
2.4 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 9.1 of these General Terms to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently, https://university.hyland.com/). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training. Any training listed in a Purchase Table Schedule will be invoiced upon the Effective Date of such Purchase Table Schedule.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under the Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership. Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(i) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000 bodily injury each accident, USD $1,000,000 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer's Liability Insurance Coverage worker's shall be GBP 5,000,000;
(ii) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD $1,000,000.00 per occurrence and USD $2,000,000,00 in aggregate;
(iii) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(iv) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(v) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Governing Law; Jurisdiction. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
9.2 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.4 Integration. The Agreement, including any and all exhibits and schedules referred to herein and any Service Proposal or order form referencing the Agreement, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The Agreement may only be modified by a written document signed by duly authorized representatives of the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all Notices shall also be sent with copy to:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
9.6 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the provisions of this Section 9.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by the Agreement.
9.7 Severability. In the event that any term or provision of the Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement.
9.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
9.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.11 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of the Agreement.
9.12 Non-Solicitation; Non-Hire. During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 9.12(a). The parties agree that this provision survives the termination of the Agreement.
9.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the products or services established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.14 Counterparts. The Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
9.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.17 ShareBase . If Customer is purchasing ShareBase, ShareBase is not governed by the terms of the Agreement, but instead is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Customer” means the entity signing the Agreement.
“Effective Date” means (i) as used in these General Terms and any Schedule included in the Agreement upon the initial signing of the Agreement, the date the Agreement is signed by the last party that signs the Agreement, as determined based upon the dates set forth after their respective signatures, and (ii) as used in any Schedule that is added to the Agreement after the Effective Date as described in (i) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, as determined based upon the dates set forth after their respective signatures.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“ShareBase” means: (a) a cloud-based solution of services and software for electronic storage, sharing and processing of electronic data, information, files and other content submitted, collected or processed by Customer using the solution; (b) is hosted by Hyland; and (c) is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement; Software does not include ShareBase.
Confidential - Ó 2022 Hyland Software, Inc.
Effective September 28th 2022 to December 7th 2022
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference. This General Terms Schedule includes terms that will apply to any product license or service you purchase from Hyland under another Schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. The Agreement shall have a term commencing on the Effective Date and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate the Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 9.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when the Agreement is signed by both parties, the parties will treat the Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement (including any Services Proposal), except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts. With respect to any annual fees, Hyland may increase or decrease the fees invoiced if the value of the currency used, determined based on the currency’s exchange rate to USD as tracked and published by the Wall Street Journal, has fluctuated by ten percent (10%) or more between the beginning of the prior annual period and the applicable invoice date.
2.4 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 9.1 of these General Terms to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently. https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training. Any training listed in a Purchase Table Schedule will be invoiced upon the Effective Date of such Purchase Table Schedule.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under the Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership. Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(i) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000 bodily injury each accident, USD $1,000,000 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer's Liability Insurance Coverage worker's shall be GBP 5,000,000;
(ii) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD $1,000,000.00 per occurrence and USD $2,000,000,00 in aggregate;
(iii) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(iv) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(v) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Governing Law; Jurisdiction. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
9.2 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.4 Integration. The Agreement, including any and all exhibits and schedules referred to herein and any Service Proposal or order form referencing the Agreement, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The Agreement may only be modified by a written document signed by duly authorized representatives of the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all Notices shall also be sent with copy to:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
9.6 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the provisions of this Section 9.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by the Agreement.
9.7 Severability. In the event that any term or provision of the Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement.
9.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
9.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.11 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of the Agreement.
9.12 Non-Solicitation; Non-Hire. During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 9.12(a). The parties agree that this provision survives the termination of the Agreement.
9.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the products or services established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.14 Counterparts. The Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
9.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.17 ShareBase . If Customer is purchasing ShareBase, ShareBase is not governed by the terms of the Agreement, but instead is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Customer” means the entity signing the Agreement.
“Effective Date” means (i) as used in these General Terms and any Schedule included in the Agreement upon the initial signing of the Agreement, the date the Agreement is signed by the last party that signs the Agreement, as determined based upon the dates set forth after their respective signatures, and (ii) as used in any Schedule that is added to the Agreement after the Effective Date as described in (i) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, as determined based upon the dates set forth after their respective signatures.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“ShareBase” means: (a) a cloud-based solution of services and software for electronic storage, sharing and processing of electronic data, information, files and other content submitted, collected or processed by Customer using the solution; (b) is hosted by Hyland; and (c) is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement; Software does not include ShareBase.
Confidential - Ó 2022 Hyland Software, Inc.
Effective July 15th 2022 to September 28th 2022
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference. This General Terms Schedule includes terms that will apply to any product license or service you purchase from Hyland under another Schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. The Agreement shall have a term commencing on the Effective Date and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate the Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 9.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when the Agreement is signed by both parties, the parties will treat the Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement (including any Services Proposal), except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts.
2.4 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 9.1 of these General Terms to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently. https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training. Any training listed in a Purchase Table Schedule will be invoiced upon the Effective Date of such Purchase Table Schedule.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under the Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership.Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(i) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000 bodily injury each accident, USD $1,000,000 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer's Liability Insurance Coverage worker's shall be GBP 5,000,000;
(ii) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD $1,000,000.00 per occurrence and USD $2,000,000,00 in aggregate;
(iii) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(iv) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(v) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Governing Law; Jurisdiction. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
9.2 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.4 Integration. The Agreement, including any and all exhibits and schedules referred to herein and any Service Proposal or order form referencing the Agreement, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The Agreement may only be modified by a written document signed by duly authorized representatives of the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all Notices shall also be sent with copy to:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
9.6 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the provisions of this Section 9.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by the Agreement.
9.7 Severability. In the event that any term or provision of the Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement.
9.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
9.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.11 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of the Agreement.
9.12 Non-Solicitation; Non-Hire. During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 9.12(a). The parties agree that this provision survives the termination of the Agreement.
9.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the products or services established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.14 Counterparts. The Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
9.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.17 ShareBase . If Customer is purchasing ShareBase, ShareBase is not governed by the terms of the Agreement, but instead is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Customer” means the entity signing the Agreement.
“Effective Date” means (i) as used in these General Terms and any Schedule included in the Agreement upon the initial signing of the Agreement, the date the Agreement is signed by the last party that signs the Agreement, as determined based upon the dates set forth after their respective signatures, and (ii) as used in any Schedule that is added to the Agreement after the Effective Date as described in (i) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, as determined based upon the dates set forth after their respective signatures.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“ShareBase” means: (a) a cloud-based solution of services and software for electronic storage, sharing and processing of electronic data, information, files and other content submitted, collected or processed by Customer using the solution; (b) is hosted by Hyland; and (c) is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement; Software does not include ShareBase.
Confidential - Ó 2020 Hyland Software, Inc.
Effective July 15th 2022 to July 15th 2022
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference. This General Terms Schedule includes terms that will apply to any product license or service you purchase from Hyland under another Schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. The Agreement shall have a term commencing on the Effective Date and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate the Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 9.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when the Agreement is signed by both parties, the parties will treat the Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement (including any Services Proposal), except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts.
2.4 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 9.1 of these General Terms to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently. https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training. Any training listed in a Purchase Table Schedule will be invoiced upon the Effective Date of such Purchase Table Schedule.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under the Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership.Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(i) Worker’s Compensation and Employer’s Liability Insurance Coverage (as applicable). In the case of coverage of US employees, the worker’s compensation coverage shall be in the minimum amounts required by statute, and the Employer’s Liability Insurance Coverage shall be USD $1,000,000 bodily injury each accident, USD $1,000,000 bodily injury by disease each employee and policy limit. In the case of coverage for UK employees, the policy limits under the Employer's Liability Insurance Coverage worker's shall be GBP 5,000,000;
(ii) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be USD $1,000,000.00 per occurrence and USD $2,000,000,00 in aggregate;
(iii) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for USD $1,000,000.00 per occurrence;
(iv) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
(v) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall be for USD $5,000,000.00 per claim;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Governing Law; Jurisdiction. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
9.2 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.4 Integration. The Agreement, including any and all exhibits and schedules referred to herein and any Service Proposal or order form referencing the Agreement, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The Agreement may only be modified by a written document signed by duly authorized representatives of the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all Notices shall also be sent with copy to:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
9.6 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the provisions of this Section 9.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by the Agreement.
9.7 Severability. In the event that any term or provision of the Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement.
9.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
9.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.11 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of the Agreement.
9.12 Non-Solicitation; Non-Hire. During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 9.12(a). The parties agree that this provision survives the termination of the Agreement.
9.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the products or services established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.14 Counterparts. The Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
9.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.17 ShareBase . If Customer is purchasing ShareBase, ShareBase is not governed by the terms of the Agreement, but instead is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Customer” means the entity signing the Agreement.
“Effective Date” means (i) as used in these General Terms and any Schedule included in the Agreement upon the initial signing of the Agreement, the date the Agreement is signed by the last party that signs the Agreement, as determined based upon the dates set forth after their respective signatures, and (ii) as used in any Schedule that is added to the Agreement after the Effective Date as described in (i) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, as determined based upon the dates set forth after their respective signatures.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“ShareBase” means: (a) a cloud-based solution of services and software for electronic storage, sharing and processing of electronic data, information, files and other content submitted, collected or processed by Customer using the solution; (b) is hosted by Hyland; and (c) is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement; Software does not include ShareBase.
Confidential - Ó 2020 Hyland Software, Inc.
Effective June 8th 2022 to July 15th 2022
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference. This General Terms Schedule includes terms that will apply to any product license or service you purchase from Hyland under another Schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. The Agreement shall have a term commencing on the Effective Date and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate the Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 9.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when the Agreement is signed by both parties, the parties will treat the Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement (including any Services Proposal), except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts.
2.4 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 9.1 of these General Terms to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently. https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training. Any training listed in a Purchase Table Schedule will be invoiced upon the Effective Date of such Purchase Table Schedule.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under the Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership.Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(i) Worker’s Compensation and Employer’s Liability Insurance Coverage. The worker’s compensation coverage shall be in the minimum amounts required by statute. Employer’s Liability Insurance Coverage shall be $1,000,000 bodily injury each accident, $1,000,000 bodily injury by disease each employee and policy limit;
(ii) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000,00) in aggregate;
(iii) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for One Million Dollars ($1,000,000.00) per occurrence;
(iv) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for Five Million Dollars ($5,000,000.00) per occurrence;
(v) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall not be less than Five Million Dollars ($5,000,000.00) per occurrence;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Governing Law; Jurisdiction. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
9.2 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.4 Integration. The Agreement, including any and all exhibits and schedules referred to herein and any Service Proposal or order form referencing the Agreement, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The Agreement may only be modified by a written document signed by duly authorized representatives of the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all Notices shall also be sent with copy to:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
9.6 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the provisions of this Section 9.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by the Agreement.
9.7 Severability. In the event that any term or provision of the Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement.
9.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
9.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.11 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of the Agreement.
9.12 Non-Solicitation; Non-Hire. During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 9.12(a). The parties agree that this provision survives the termination of the Agreement.
9.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the products or services established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.14 Counterparts. The Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
9.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.17 ShareBase . If Customer is purchasing ShareBase, ShareBase is not governed by the terms of the Agreement, but instead is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Customer” means the entity signing the Agreement.
“Effective Date” means (i) as used in these General Terms and any Schedule included in the Agreement upon the initial signing of the Agreement, the date the Agreement is signed by the last party that signs the Agreement, as determined based upon the dates set forth after their respective signatures, and (ii) as used in any Schedule that is added to the Agreement after the Effective Date as described in (i) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, as determined based upon the dates set forth after their respective signatures.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“ShareBase” means: (a) a cloud-based solution of services and software for electronic storage, sharing and processing of electronic data, information, files and other content submitted, collected or processed by Customer using the solution; (b) is hosted by Hyland; and (c) is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement; Software does not include ShareBase.
Confidential - Ó 2020 Hyland Software, Inc.
Effective June 3rd 2022 to June 8th 2022
DownloadTable of Contents
GENERAL TERMS SCHEDULE
This General Terms Schedule (“General Terms” or “General Terms Schedule”) forms a part of the Hyland Master Agreement or any other agreement between Customer and Hyland (the “Agreement”) which incorporates this SaaS Schedule by reference. This General Terms Schedule includes terms that will apply to any product license or service you purchase from Hyland under another Schedule that is made a part of the Agreement. Other Schedules will have more specific terms relevant to the product licensee or service governed by that Schedule. If there is a conflict between the terms of this General Terms Schedule and any other Schedule, the other Schedule shall control with respect to the subject matter of such Schedule. In the event the same topic is addressed in both the General Terms Schedule and any other Schedule but the terms do not conflict, the terms of both the General Terms Schedule and the Schedule shall apply. Capitalized terms used in this General Terms Schedule may be defined within this Schedule or within other Schedules to which they are applicable. If such capitalized terms are not defined in this or any other Schedule made part of the Agreement, they are not applicable until defined in an amendment to the Agreement.
1. TERM; TERMINATION; SURVIVAL OF PROVISIONS AFTER EXPIRATION OR TERMINATION.
1.1 Term. The Agreement shall have a term commencing on the Effective Date and will continue until all Schedules have been terminated or expired in accordance with their terms.
1.2 Termination.
1.2.1 By Either Party. Either party may terminate the Agreement in its entirety or any Schedule, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of the Agreement or any Schedule and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of a Prohibited Act or breach of the U.S. Government End User section of any Schedule, all of which are considered for all purposes to be material provisions of the Agreement.
1.2.2 Termination of General Terms Schedule. Notwithstanding the foregoing, this General Terms Schedule will terminate when and only if all other Schedules have been terminated.
1.3 Certain Effects or Consequences of Termination; Survival of Certain Provisions.
1.3.1 Generally. Any termination of the Agreement or any Schedule will not discharge or otherwise affect any pre-termination obligations of either party existing under the Agreement at the time of termination, including Customer’s obligation to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of the Agreement or the applicable Schedule; and all liabilities which have accrued prior to the date of termination shall survive.
1.3.2 Survival of Certain Obligations. All provisions of the Agreement or of an applicable Schedule, which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to all sections of these General Terms (except Section 9.13).
1.3.3. Termination of a Schedule. If any Schedule under which a license to Software is granted is terminated in accordance with its terms, then this entire Agreement will terminate with respect to the Software licensed under such Schedule. Otherwise, termination of a Schedule will not affect the remaining Schedules.
2. PAYMENT TERMS.
2.1 Purchase Orders. Customer acknowledges and agrees that, when the Agreement is signed by both parties, the parties will treat the Agreement as: (a) Customer’s written purchase order for the matters described in a Purchase Table Schedule, and (b) Hyland’s acceptance of such purchase order.
2.2 Invoicing. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.3 General Payment Terms. So long as Customer is not in default of any payment obligations under the Agreement (including any Services Proposal), except as otherwise provided in the Agreement, Customer shall pay in full all Undisputed Amounts within thirty (30) days after the receipt of such invoice. “Undisputed Amounts” means all amounts on any invoice for which Customer has not provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such invoice amounts.
2.4 Taxes and Governmental Charges. All payments under the Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 Resolution of Invoice Disputes. In the case of any Disputed Amount (as defined below), both parties will use reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any Disputed Amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties’ executive managers are unable to resolve the dispute within ten (10) calendar days of such meeting, either party thereafter may file litigation in a court of competent jurisdiction under Section 9.1 of these General Terms to seek resolution of the dispute. As used herein, “Disputed Amounts” means those amounts on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s good faith objections to payment of such amounts.
2.6 Certain Remedies For Non-Payment or For Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement or any Services Proposal, including the delivery of any Upgrades and Enhancements to Customer, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2.7 U.S. Dollars; Delivery of Hasps and CDs. All fees, costs and expenses under the Agreement shall be determined and invoiced in, and all payments required to be made in connection with the Agreement shall be made in, U.S. dollars. Delivery of CDs, if any, shall be F.O.B. Hyland’s offices in Westlake, Ohio, USA.
2.8 Training. Hyland offers training courses to Customer and its employees as described on Hyland’s training web portal (currently. https://training.onbase.com). Training fees for such courses shall be determined at Hyland’s retail prices in effect at the time Customer registers for training. Hyland shall invoice Customer for applicable training fees upon Customer’s registration for each training course and such invoice shall be due and payable in accordance with Section 2.3 above. In the event that Customer prepays for training, then such prepaid training shall expire twelve (12) months from the date Hyland accepts Customer’s purchase order for such training. Any training listed in a Purchase Table Schedule will be invoiced upon the Effective Date of such Purchase Table Schedule.
3. CONFIDENTIAL INFORMATION.
3.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
3.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under the Agreement. Customer agrees to take all reasonable steps to protect all Software, Hyland Cloud Services, Add-On Services, Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under the Agreement from unauthorized copying or use. Each party shall be liable and responsible for any breach of this Section 3 committed by any of such party’s employees, agents, consultants, contractors or representatives.
4. OWNERSHIP AND PROHIBITED CONDUCT.
4.1 Ownership.Hyland and its suppliers own the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, and Innovations, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software, Documentation, Hyland Cloud Services, Add-On Services, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Hyland Cloud Services, Add-On Services, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in the Agreement or associated documents gives it any right, title or interest in the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products, except for the limited express rights granted in the Agreement. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software, Hyland Cloud Services, and Add-On Services, and Hyland’s policies respecting Upgrades and Enhancements (including but not limited to its release process). THE AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time shall Customer file or obtain any lien or security interest in or on any components of the Software, Hyland Cloud Service, Add-On Services, Documentation, or Work Products.
4.2 Prohibited Conduct. Customer agrees not to: (a) remove copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation; (b) sell, transfer, rent, lease or sub-license the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation to any third party; (c) except as expressly permitted with respect to Work Products, alter or modify the Software, Work Products, Hyland Cloud Services, Add-On Services, Documentation or Hosted 3rd Party Software documentation; or (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, Work Products, Documentation, Hyland Cloud Services, Add-On Services, or Hosted 3rd Party Software documentation, or prepare derivative works therefrom.
5. DISCLAIMER OF WARRANTIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HYLAND CLOUD SERVICE (INCLUDING ANY SOFTWARE OR HARDWARE), ADD-ON SERVICES, WORK PRODUCTS, INNOVATIONS, INFORMATION, MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HYLAND CLOUD SERVICE, ADD-ON SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, HYLAND CLOUD SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCTS, ADD-ON SERVICES, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE, HYLAND CLOUD SERVICES, ADD-ON SERVICES, OR WORK PRODUCTS USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE, HYLAND CLOUD SERVICE, AND WORK PRODUCTS “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Hyland by a corporate officer.
6. LIMITATIONS OF LIABILITY.
6.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
6.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW, (2) PAYMENTS TO A THIRD PARTY ARISING FROM HYLAND’S INDEMNIFICATION OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT; OR (3) TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR CONTRACTOR’S PROHIBITED ACTS.
6.4 IF CUSTOMER USES THE SOFTWARE, HYLAND CLOUD SERVICE, OR ADD-ON SERVICES IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, HYLAND CLOUD SERVICES AND ADD-ON SERVICES DO NOT OFFER MEDICAL INTERPRETATIONS OF DATA, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY OR TREATMENT; THE SOFTWARE, HYLAND CLOUD SERVICE AND ADD-ON SERVICES ARE AN INFORMATION RESOURCE AND IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES IN THE PROVISION OF HEALTHCARE SERVICES. IN ADDITION TO THE LIMITATIONS OF LIABILITY PROVIDED HEREIN, HYLAND SHALL NOT HAVE ANY LIABILITY FOR ANY ASPECT OF HEALTHCARE SERVICES PROVIDED BY CUSTOMER IN CONJUNCTION WITH ITS USE OF THE SOFTWARE, HYLAND CLOUD SERVICE OR ADD-ON SERVICES.
7. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to the Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 7 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under the Agreement is postponed or extended pursuant to this Section 7 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate the Agreement.
8. INSURANCE REQUIREMENTS. Hyland will maintain and keep in force the following insurance coverage:
(i) Worker’s Compensation and Employer’s Liability Insurance Coverage. The worker’s compensation coverage shall be in the minimum amounts required by statute. Employer’s Liability Insurance Coverage shall be $1,000,000 bodily injury each accident, $1,000,000 bodily injury by disease each employee and policy limit;
(ii) General Liability Insurance Coverage. The policy limit under the General Liability Insurance Coverage shall be One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000,00) in aggregate;
(iii) Automobile Liability Insurance Coverage. The policy limit under the Automobile Liability Insurance Coverage policy shall be for One Million Dollars ($1,000,000.00) per occurrence;
(iv) Cyber Liability Insurance: The policy limit under the Cyber Liability Insurance Coverage shall be for Five Million Dollars ($5,000,000.00) per occurrence;
(v) Professional Liability (Errors & Omissions): The policy limit under the Professional Liability Insurance Coverage shall not be less than Five Million Dollars ($5,000,000.00) per occurrence;
Hyland shall provide a certificate of insurance listing the above coverages upon Customer’s reasonable request.
9. GENERAL PROVISIONS.
9.1 Governing Law; Jurisdiction. The Agreement and any claim, action, suit, proceeding or dispute arising out of the Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of the Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
9.2 Interpretation. The headings used in the Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in the Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to the Agreement.
9.3 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
9.4 Integration. The Agreement, including any and all exhibits and schedules referred to herein and any Service Proposal or order form referencing the Agreement, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Customer acknowledges and agrees in entering into the Agreement and its purchases hereunder are not contingent on the availability of any future functionality, features, programs, or services. The Agreement may only be modified by a written document signed by duly authorized representatives of the parties. The Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer and Hyland specifically acknowledge and agree that any other terms varying from or adding to the terms of the Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties. The Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
9.5 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under the Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all Notices shall also be sent with copy to:
28500 Clemens Road
Westlake, OH 44145
Attn: General Counsel
hylandcontracts@onbase.com
9.6 Binding Effect; No Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of the Agreement or its rights or obligations under the Agreement, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of the Agreement in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under the Agreement. Any assignment made without compliance with the provisions of this Section 9.6 shall be null and void and of no force or effect. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by the Agreement.
9.7 Severability. In the event that any term or provision of the Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of the Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of the Agreement.
9.8 Subcontracting. Hyland may subcontract all or any part of the services, provided that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
9.9 Independent Contractor. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.
9.10 Export. Any Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation provided under the Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Hyland Cloud Service, Add-On Services, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Hyland Cloud Service, Add-On Services, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
9.11 Injunctive Relief. The parties to the Agreement recognize that a remedy at law for a breach of the provisions of the Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of the Agreement.
9.12 Non-Solicitation; Non-Hire. During the term of the Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will:
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a person who is or was an employee of the other party, or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person: (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement (including during the performance of any Professional Services under a Services Proposal); and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
Each violation of this provision by a party entitles the other party to liquidated damages (not a penalty) in an amount equal to the greater of: (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 9.12(a). The parties agree that this provision survives the termination of the Agreement.
9.13 Marketing and Publicity.
(a) References and Site Visits. From time to time, upon the reasonable request of Hyland, Customer agrees to make one or more employees available: (i) for telephone interviews with Hyland and/or third parties, relating to Hyland, Customer’s use of Hyland’s products or services, the benefits Customer has derived from Hyland’s products or services or similar topics; and (ii) to participate in customer site visits. Hyland agrees that it shall reimburse Customer for any out-of-pocket travel, lodging, registration and meals costs and expenses that are incurred by any such employees of Customer in connection with any off site visit if applicable, provided that such costs and expenses are reimbursable in accordance with Hyland’s expense reimbursement policies.
(b) Press Release. Either party may, with prior approval of the other party, prepare and issue a press release referring to the other party and relating to the signing of the Agreement, the scope of the relationship and the products or services established under the Agreement.
(c) Case Studies. Hyland may, with the prior approval of Customer, prepare, publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing any or all of the applications for which Hyland’s products or services will be used by Customer (e.g., Accounts Payable).
(d) Limitations. Except as specifically set forth in paragraphs (a) through (c) above, or as necessary to perform its obligations under the Agreement, neither party shall, without the prior written consent of the other party, use the names, services marks or trademarks of such other party nor the name of any employee of such other party, or reveal the existence of or terms of the Agreement, in any advertising or publicity release or promotional literature.
9.14 Counterparts. The Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same instrument.
9.15 Expenses. Except as otherwise specifically provided herein, each party shall bear and pay its own expenses incurred in connection with the Agreement and the transactions contemplated hereby.
9.16 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of the Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to the Agreement as it applies to their respective software products.
9.17 ShareBase . If Customer is purchasing ShareBase, ShareBase is not governed by the terms of the Agreement, but instead is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
10. DEFINED TERMS.
The defined terms below shall have the meaning ascribed to them below as used throughout the Agreement. Specific Schedules may also include additional defined terms that are relevant to the terms of that Schedule and these General Terms. Defined terms below may also incorporate defined terms that are defined in a particular Schedule, only if applicable. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within the General Terms Schedule, the General Terms Schedule shall be interpreted to include all definitions, as the context requires.
“Add-On Service” means a software as a service offering provided by Hyland that provides additional or separate functionality or service to Customer’s Software solution or Hyland Cloud Service.
“Customer” means the entity signing the Agreement.
“Effective Date” means (i) as used in these General Terms and any Schedule included in the Agreement upon the initial signing of the Agreement, the date the Agreement is signed by the last party that signs the Agreement, as determined based upon the dates set forth after their respective signatures, and (ii) as used in any Schedule that is added to the Agreement after the Effective Date as described in (i) of this definition, the date that the amendment adding such Schedule or such Schedule is signed by the last party that signs such amendment or Schedule, as determined based upon the dates set forth after their respective signatures.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of the Agreement (including any Services Proposal).
“Prohibited Act” or “Prohibited Acts” means any action taken by Customer that is: (i) in violation of Section 1 of a Software License Schedule - Perpetual or Section 1, 2 or 3 of a Software and Maintenance Schedule – Subscription or Section 2 of a SaaS Schedule; (ii) contrary to Section 4 of these General Terms; or (iii) in violation of any term of any Schedule that is identified within that Schedule to be a Prohibited Act.
“ShareBase” means: (a) a cloud-based solution of services and software for electronic storage, sharing and processing of electronic data, information, files and other content submitted, collected or processed by Customer using the solution; (b) is hosted by Hyland; and (c) is subject to the ShareBase by Hyland Terms of Use and Subscription, which is available for download at Hyland’s ShareBase website, currently https://app.sharebase.com/legal/terms-of-service/, https://app.sharebase.com/legal/privacy-policy/, and https://app.sharebase.com/legal/acceptable-use-policy/.
“Software” means: except as otherwise expressly stated in a particular Schedule, (a) Hyland’s proprietary software products, listed in the Purchase Table Schedule, and other Hyland proprietary software products for which Customer submits a written purchase order to Hyland (or an authorized solution provider) that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with Hyland’s proprietary software products as a unified product; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to the Agreement; Software does not include ShareBase.
Confidential - Ó 2020 Hyland Software, Inc.
Global Services
Effective September 30th 2022
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Hyland Direct Customers Contracts and policies for Hyland direct customers | Hyland Partners Contracts and policies for Hyland partners |
Effective April 29th 2022 to September 30th 2022
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Hyland Direct Customers Contracts and policies for Hyland direct customers | Hyland Partners Contracts and policies for Hyland partners |
Executable Add-On Subscription Amendment
Effective October 4th 2022
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Contract #:
AMENDMENT TO UNDERLYING LICENSE AGREEMENT
(SUBSCRIPTION LICENSES FOR ADD-ON SOFTWARE)
This AMENDMENT TO UNDERLYING LICENSE AGREEMENT (“Amendment”) is made and entered into effective as of the date that the last party to sign this Amendment has executed the same (as indicated by the date entered by such party with its signature below) (“Amendment Effective Date”), by and between the Hyland entity that has executed this Amendment (“Hyland”) and Customer and amends that certain contract that governs the licenses to the Software previously procured by Customer (such as an End User License Agreement (click through or written), Master Software License, Services and Support Agreement, Software License and Services Agreement or other similar agreement addressing Software license terms) (the “Underlying License Agreement”).
1. DEFINED TERMS:
(a) Capitalized terms used in this Amendment and not defined herein are used herein with the same meanings given such terms under the Underlying License Agreement.
(b) The following additional defined terms are added to the Underlying License Agreement:
2. SUBSCRIPTION SOFTWARE: The parties agree that all Subscription Software will be licensed to Customer on a subscription basis in accordance with the Underlying License Agreement as amended by this Amendment, and that the terms of this Amendment shall not apply to Existing Software, which shall continue to be licensed on a perpetual basis. Accordingly, Hyland and Customer agree that, with respect to Subscription Software, as of the Amendment Effective Date, the Underlying License Agreement shall be amended as follows:
3. NO OTHER CHANGES: In all other respects the Underlying License Agreement remains in full force and effect. Except as otherwise expressly stated in this Amendment, Subscription Software is subject to all the same terms and conditions applicable to Software under the Underlying License Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year set forth after their respective names below:
“Customer”______________________________ | Hyland Hyland Entity: ____________________________________ |
By: | By: |
Print Name: | Print Name: |
Title: | Title: |
Date: | Date: |
Hyland Legal Approved By: Date: |
Effective October 4th 2022 to October 4th 2022
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Contract #:
AMENDMENT TO UNDERLYING LICENSE AGREEMENT
(SUBSCRIPTION LICENSES FOR ADD-ON SOFTWARE)
This AMENDMENT TO UNDERLYING LICENSE AGREEMENT (“Amendment”) is made and entered into effective as of the date that the last party to sign this Amendment has executed the same (as indicated by the date entered by such party with its signature below) (“Amendment Effective Date”), by and between the Hyland entity that has executed this Amendment (“Hyland”) and Customer and amends that certain contract that governs the licenses to the Software previously procured by Customer (such as an End User License Agreement (click through or written), Master Software License, Services and Support Agreement, Software License and Services Agreement or other similar agreement addressing Software license terms) (the “Underlying License Agreement”).
1. DEFINED TERMS:
(a) Capitalized terms used in this Amendment and not defined herein are used herein with the same meanings given such terms under the Underlying License Agreement.
(b) The following additional defined terms are added to the Underlying License Agreement:
2. SUBSCRIPTION SOFTWARE: The parties agree that all Subscription Software will be licensed to Customer on a subscription basis in accordance with the Underlying License Agreement as amended by this Amendment, and that the terms of this Amendment shall not apply to Existing Software, which shall continue to be licensed on a perpetual basis. Accordingly, Hyland and Customer agree that, with respect to Subscription Software, as of the Amendment Effective Date, the Underlying License Agreement shall be amended as follows:
3. NO OTHER CHANGES: In all other respects the Underlying License Agreement remains in full force and effect. Except as otherwise expressly stated in this Amendment, Subscription Software is subject to all the same terms and conditions applicable to Software under the Underlying License Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year set forth after their respective names below:
“Customer”______________________________ | Hyland Hyland Entity: ____________________________________ |
By: | By: |
Print Name: | Print Name: |
Title: | Title: |
Date: | Date: |
Hyland Legal Approved By: Date: |
Support Prioritization Attachment - Portuguese - Hyland Cloud Services
Effective May 31st 2023
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| Nível de Gravidade | Descrição | Resposta da Hyland |
Nível 1 | "Nível 1" significa qualquer erro ou problema no Serviço de Nuvem da Hyland que causa falha total ou substancial no Serviço de Nuvem da Hyland, o que significa que o Serviço de Nuvem da Hyland está inativa e o Cliente não consegue acessar o Serviço de Nuvem da Hyland de nenhuma maneira. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará imediatamente um gerente de suporte. Dentro de 30 (trinta) minutos, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalhará até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, contanto que o Cliente permaneça acessível por telefone para solucionar os problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 2 | "Nível 2" significa um erro ou problema no Serviço de Nuvem da Hyland que causa uma falha substancial no Serviço de Nuvem da Hyland, impedindo que uma parte dos usuários do Cliente acesse o Serviço de Nuvem da Hyland de qualquer forma. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará um gerente de suporte dentro de 60 (sessenta) minutos. Dentro de 2 (duas) horas, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalha até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 3 | “Nível 3” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa uma degradação grave e contínua do desempenho em todo o sistema. | Para fornecer uma Resolução, a Hyland trabalha até 5 dias por semana, 16 horas por dia, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 4 | “Nível 4” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland impede que um recurso ou funcionalidade específica funcione. | Para fornecer uma Resolução, a Hyland envidará esforços razoáveis durante o horário regular de suporte. |
Nível 5 | “Nível 5” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa um inconveniente trivial e a tarefa pode ser concluída de outra maneira. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Nível 6 | “Nível 6” significa Serviços de Suporte Técnico. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Effective December 8th 2022 to May 31st 2023
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| Nível de Gravidade | Descrição | Resposta da Hyland |
Nível 1 | "Nível 1" significa qualquer erro ou problema no Serviço de Nuvem da Hyland que causa falha total ou substancial no Serviço de Nuvem da Hyland, o que significa que o Serviço de Nuvem da Hyland está inativa e o Cliente não consegue acessar o Serviço de Nuvem da Hyland de nenhuma maneira. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará imediatamente um gerente de suporte. Dentro de 30 (trinta) minutos, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalhará até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, contanto que o Cliente permaneça acessível por telefone para solucionar os problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 2 | "Nível 2" significa um erro ou problema no Serviço de Nuvem da Hyland que causa uma falha substancial no Serviço de Nuvem da Hyland, impedindo que uma parte dos usuários do Cliente acesse o Serviço de Nuvem da Hyland de qualquer forma. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará um gerente de suporte dentro de 60 (sessenta) minutos. Dentro de 2 (duas) horas, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalha até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 3 | “Nível 3” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa uma degradação grave e contínua do desempenho em todo o sistema. | Para fornecer uma Resolução, a Hyland trabalha até 5 dias por semana, 16 horas por dia, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 4 | “Nível 4” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland impede que um recurso ou funcionalidade específica funcione. | Para fornecer uma Resolução, a Hyland envidará esforços razoáveis durante o horário regular de suporte. |
Nível 5 | “Nível 5” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa um inconveniente trivial e a tarefa pode ser concluída de outra maneira. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Nível 6 | “Nível 6” significa Serviços de Suporte Técnico. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Effective October 20th 2022 to December 8th 2022
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| Nível de Gravidade | Descrição | Resposta da Hyland |
Nível 1 | "Nível 1" significa qualquer erro ou problema no Serviço de Nuvem da Hyland que causa falha total ou substancial no Serviço de Nuvem da Hyland, o que significa que o Serviço de Nuvem da Hyland está inativa e o Cliente não consegue acessar o Serviço de Nuvem da Hyland de nenhuma maneira. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará imediatamente um Gerente de suporte. Dentro de 30 (trinta) minutos, o Gerente notificará um membro da Administração Sênior ou um Vice-Presidente. Para fornecer uma Resolução, a Hyland trabalhará até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, contanto que o Cliente permaneça acessível por telefone para solucionar os problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 2 | "Nível 2" significa um erro ou problema no Serviço de Nuvem da Hyland que causa uma falha substancial no Serviço de Nuvem da Hyland, impedindo que uma parte dos usuários do Cliente acesse o Serviço de Nuvem da Hyland de qualquer forma. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará um Gerente de suporte dentro de 60 (sessenta) minutos. Dentro de 2 (duas) horas, o Gerente notificará um membro da Administração Sênior ou Vice-Presidente. Para fornecer uma Resolução, a Hyland trabalha até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 3 | “Nível 3” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa uma degradação grave e contínua do desempenho em todo o sistema. | Para fornecer uma Resolução, a Hyland trabalha até 5 dias por semana, 16 horas por dia, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
Nível 4 | “Nível 4” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland impede que um recurso ou funcionalidade específica funcione. | Para fornecer uma Resolução, a Hyland envidará esforços razoáveis durante o horário regular de suporte. |
Nível 5 | “Nível 5” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa um inconveniente trivial e a tarefa pode ser concluída de outra maneira. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Nível 6 | “Nível 6” significa Serviços de Suporte Técnico. | Suporte ao Serviço de Nuvem da Hyland Padrão |
SaaS Security Attachment - Portuguese
Effective December 7th 2022
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APÊNDICE DE SEGURANÇA DE SAAS
Introdução: A Hyland mantém e gerencia um programa abrangente de segurança por escrito para cobertura do Serviço de Nuvem da Hyland projetado para proteger: (a) a segurança e integridade dos Dados do Cliente; (b) contra ameaças e perigos que possam afetar negativamente os Dados do Cliente; e (c) contra acesso não autorizado aos Dados do Cliente, cujo programa inclui o seguinte:
I. Gestão de Riscos
Effective October 20th 2022 to December 7th 2022
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APÊNDICE DE SEGURANÇA DE SAAS
Introdução: A Hyland mantém e gerencia um programa abrangente de segurança por escrito para cobertura do Serviço de Nuvem da Hyland projetado para proteger: (a) a segurança e integridade dos Dados do Cliente; (b) contra ameaças e perigos que possam afetar negativamente os Dados do Cliente; e (c) contra acesso não autorizado aos Dados do Cliente, cujo programa inclui o seguinte:
I. Gestão de Riscos
Nuxeo Subscription Terms
Effective February 13th 2024
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NUXEO SUBSCRIPTION TERMS
These Nuxeo Subscription Terms (these “Nuxeo Subscription Terms”) are part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates these Nuxeo Subscription Terms by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of these Nuxeo Subscription Terms, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in these Nuxeo Subscription Terms shall have the meaning ascribed them herein or, if not defined herein, the General Terms Schedule or the Subscription Schedule. If any capitalized terms used herein are not defined in these Nuxeo Subscription Terms or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Nuxeo Services.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Nuxeo” means products and services branded by Hyland as Nuxeo and licensed or purchased, as applicable, under the terms of the Agreement.
“Nuxeo Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. A Nuxeo Instance may also be referred to as a Nuxeo Server and may be illustrated as a Nuxeo Server, Nuxeo Node or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications.
“Nuxeo Services” shall mean the Nuxeo services, including Nuxeo Studio, provided by Hyland by means of access to certain content and use of the features and functionality of software applications, solely to the extent set forth and further described in, and as limited by, the applicable Order Forms executed by the parties.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“Pre-Production Environment” or “Non-Production Environment” means the environment containing full or partial production quality data, hardware and software needed to perform production support, staging, or other pre-production activities.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform the day-to-day operations of Customer
“Service Limits” means the limitations set forth in either the Order Form.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
1. NUXEO LICENSE TERMS. The parties acknowledge and agree that, except for Sections 1.1 – 1.4, 1.10 and 1.12 of the Subscription Schedule (the “Excluded Terms”), the Nuxeo Services shall be deemed to be “Software” for purposes of the Agreement. Notwithstanding the foregoing, the parties acknowledge and agree that, in addition to the terms of the Agreement (other than the Excluded Terms), Customer’s use of the Nuxeo Services shall be subject to the following license terms:
(a) Nuxeo Services Access and Use. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with this Agreement, Hyland grants to Customer a revocable, non-exclusive, non-transferable right to access the features and functions of the applicable Nuxeo Services ordered by Customer during the term of the Product Subscription and up to the Service Limits. On or as soon as reasonably practicable after the Effective Date or as set forth in the applicable Order Form for the purchase of Nuxeo Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access the Nuxeo Services, which may include the following as set forth in the applicable Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Maintenance and Support provisions set forth in the Subscription Schedule. Hyland will provide access to Nuxeo Studio in accordance with the Nuxeo Studio Service Level Agreement attached hereto. Hyland shall, at its own expense, provide for the hosting of the Nuxeo Studio which is accessible as part of the Nuxeo Services, provided that nothing herein shall be construed to require Hyland to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer to provide access from the internet to the Nuxeo Services. Customer is solely responsible for managing the Nuxeo Platform. Should Customer wish to purchase cloud services to have Hyland manage Customer’s Nuxeo Platform, Hyland and Customer shall enter into a separate Order Form or an amendment to this Agreement for such cloud services which may be subject to an additional Schedule or terms added to an Order Form.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and this Agreement does not impact any rights and obligations with respect to the Nuxeo Platform. During the term of the Product Subscription, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Maintenance and Support provisions set forth in the Subscription Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Nuxeo Instances as part of the Nuxeo Services during the term of the Product Subscription. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
(c) Reporting and Auditing. Customer shall notify Hyland promptly if the actual number of Nuxeo Instance(s) utilized by Customer exceeds the number of Nuxeo Instance(s) permitted (and for which Subscription Fees have been paid) under this Agreement. In its notice, Customer shall indicate the number of additional Nuxeo Instances and the date(s) on which such Nuxeo Instances were first used. Hyland shall invoice Customer for such additional Nuxeo Instances on a pro rata basis, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an applicable Order Form. If Hyland audits Customer’s use of Nuxeo Instances in accordance with the Subscription Schedule and discovers underreported Nuxeo Instances, Hyland will give Customer written notice of the noncompliance, including the number of underreported Nuxeo Instances, and a new or adjusted invoice to account for the underreporting Instances. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported Nuxeo Instance(s). If the audit reveals that Customer underreported more than one Nuxeo Instance, Customer shall pay Hyland for the reasonable costs incurred to perform the audit.
(d) Use of Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data, media and content provided by Customer through its use of the Nuxeo Services (collectively, “Customer Content”). Customer retains all right, title and interest in and to the Customer Content, and Hyland acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Subject to the foregoing, Customer hereby grants Hyland a non-exclusive, non-transferable right and license to use the Customer Content during the term of the Agreement for the limited purposes of performing Hyland’s obligations under this Agreement. Customer hereby represents and warrants that it owns or otherwise has sufficient rights to grant Hyland access to the Customer Content to the extent necessary to perform the Nuxeo Services, and/or Professional Services in accordance with the terms of the Agreement. Customer acknowledges and agrees that Hyland may also use the Customer Content in an aggregate or de-identified format to develop and improve the Nuxeo Services and other services.
2. CUSTOMER RESPONSIBILITIES.
(a) Customer Content. Customer and its end users of Client Applications may access the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other access protocols required in order to access the Nuxeo Services.
(b) Back-Up and Archival. Customer is solely responsible for the back-up and archival of the Customer Content, and Hyland expressly disclaims any obligation to provide any advice or assistance in such respect, and disclaims any liability for damages in respect of any failure of any back-up or archival. Hyland assumes no obligations to back up and/or archive Customer Content.
(c) Security. Customer shall be solely responsible for the security of the environment in which it uses the Nuxeo Platform and deploys Client Applications and for determining whether the security of such environment is commensurate with Customer’s needs.
3. AVAILABILITY OF CUSTOMER DATA UPON TERMINATION. Upon termination (including non-renewal) of this these Nuxeo Subscription Terms or this Agreement, whichever occurs first, Hyland will make available, and Customer may access and retrieve, all customer data, including Customer Content, application configuration, metadata, and binaries for both Production and Non-Production environments to Customer for 60 days after termination; thereafter, all such data, including Customer Content, will be deleted. The information will be shared in the form of application configuration files, database backup, XML files and binaries. Notwithstanding the foregoing, any knowledge transfer/sharing of methodologies or technologies used to host Nuxeo Studio will not be included.
4. CONTROLLING LANGUAGE. Hyland may make other versions of these Nuxeo Subscription Terms available in other languages at this online location. This English language version of these Nuxeo Subscription Terms controls over any version of the Nuxeo Subscription Terms made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Nuxeo Subscription Terms are not made available at this online location in the Other Language, this English language version controls over any other version of the Nuxeo Subscription Terms that may be made available at this online location in another language.
Nuxeo Studio – Service Level Agreement
x = ((n - y)/n) * 100
Where:
- x = Availability Percentage (expressed as percentage rounded to 2 decimal place)
- n = hours Nuxeo Studio is available in a given month (excluding the Maintenance Window)
- y = hours Nuxeo Studio is unavailable in a given month (excluding the Maintenance Window)
SLA | SLA Credits |
Nuxeo Studio Availability SLA | 2.5% of the fee for the Nuxeo Services for the applicable month (calculated pro rata) for each 0.25% below the Availability Target |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective October 4th 2023 to February 13th 2024
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NUXEO SUBSCRIPTION TERMS
These Nuxeo Subscription Terms (these “Nuxeo Subscription Terms”) are part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates these Nuxeo Subscription Terms by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of these Nuxeo Subscription Terms, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in these Nuxeo Subscription Terms shall have the meaning ascribed them herein or, if not defined herein, the General Terms Schedule or the Subscription Schedule. If any capitalized terms used herein are not defined in these Nuxeo Subscription Terms or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Nuxeo Services.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Nuxeo” means products and services branded by Hyland as Nuxeo and licensed or purchased, as applicable, under the terms of the Agreement.
“Nuxeo Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. A Nuxeo Instance may also be referred to as a Nuxeo Server and may be illustrated as a Nuxeo Server, Nuxeo Node or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications.
“Nuxeo Services” shall mean the Nuxeo services, including Nuxeo Studio, provided by Hyland by means of access to certain content and use of the features and functionality of software applications, solely to the extent set forth and further described in, and as limited by, the applicable Order Forms executed by the parties.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“Pre-Production Environment” or “Non-Production Environment” means a collection of Nuxeo Instances comprising the environment containing full or partial production quality data, hardware and software needed to perform production support, staging, or other pre-production activities.
“Production Environment” means a collection of Nuxeo Instances comprising the environment containing final production data, hardware, and software needed to perform the day-to-day operations of Customer
“Service Limits” means the limitations set forth in either the Order Form relating to Nuxeo Services.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio User to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
1. NUXEO LICENSE TERMS. The parties acknowledge and agree that, except for Sections 1.1 – 1.4, 1.10 and 1.12 of the Subscription Schedule (the “Excluded Terms”), the Nuxeo Services shall be deemed to be “Software” for purposes of the Agreement. Notwithstanding the foregoing, the parties acknowledge and agree that, in addition to the terms of the Agreement (other than the Excluded Terms), Customer’s use of the Nuxeo Services shall be subject to the following license terms:
(a) Nuxeo Services Access and Use. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with this Agreement, Hyland grants to Customer a revocable, non-exclusive, non-transferable right to access the features and functions of the applicable Nuxeo Services ordered by Customer during the Term Length identified in the Order Form and up to the Service Limits. On or as soon as reasonably practicable after the Effective Date or as set forth in the applicable Order Form for the purchase of Nuxeo Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access the Nuxeo Services, which may include the following as set forth in the applicable Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Maintenance and Support provisions set forth in the Subscription Schedule. Hyland will provide access to Nuxeo Studio in accordance with the Nuxeo Studio Service Level Agreement attached hereto. Hyland shall, at its own expense, provide for the hosting of the Nuxeo Studio which is accessible as part of the Nuxeo Services, provided that nothing herein shall be construed to require Hyland to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer to provide access from the internet to the Nuxeo Services. Customer is solely responsible for managing the Nuxeo Platform. Should Customer wish to purchase cloud services to have Hyland manage Customer’s Nuxeo Platform, Hyland and Customer shall enter into a separate Order Form or an amendment to this Agreement for such cloud services which may be subject to an additional Schedule or terms added to an Order Form.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and this Agreement does not impact any rights and obligations with respect to the Nuxeo Platform. During the term of the Subscription Schedule, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Maintenance and Support provisions set forth in the Subscription Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Nuxeo Instances as part of the Nuxeo Services during the term of the Subscription Schedule. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
(c) Reporting and Auditing. Customer shall notify Hyland promptly if the actual number of Nuxeo Instance(s) utilized by Customer exceeds the number of Nuxeo Instance(s) permitted (and for which Subscription Fees have been paid) under this Agreement. In its notice, Customer shall indicate the number of additional Nuxeo Instances and the date(s) on which such Nuxeo Instances were first used. Hyland shall invoice Customer for such additional Nuxeo Instances on a pro rata basis, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an applicable Order Form. If Hyland audits Customer’s use of Nuxeo Instances in accordance with the Subscription Schedule and discovers underreported Nuxeo Instances, Hyland will give Customer written notice of the noncompliance, including the number of underreported Nuxeo Instances, and a new or adjusted invoice to account for the underreporting Instances. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported Nuxeo Instance(s). If the audit reveals that Customer underreported more than one Nuxeo Instance, Customer shall pay Hyland for the reasonable costs incurred to perform the audit.
(d) Use of Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data, media and content provided by Customer through its use of the Nuxeo Services (collectively, “Customer Content”). Customer retains all right, title and interest in and to the Customer Content, and Hyland acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Subject to the foregoing, Customer hereby grants Hyland a non-exclusive, non-transferable right and license to use the Customer Content during the term of the Agreement for the limited purposes of performing Hyland’s obligations under this Agreement. Customer hereby represents and warrants that it owns or otherwise has sufficient rights to grant Hyland access to the Customer Content to the extent necessary to perform the Nuxeo Services, and/or Professional Services in accordance with the terms of the Agreement. Customer acknowledges and agrees that Hyland may also use the Customer Content in an aggregate or de-identified format to develop and improve the Nuxeo Services and other services.
2. CUSTOMER RESPONSIBILITIES.
(a) Customer Content. Customer and its end users of Client Applications may access the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other access protocols required in order to access the Nuxeo Services.
(b) Back-Up and Archival. Customer is solely responsible for the back-up and archival of the Customer Content, and Hyland expressly disclaims any obligation to provide any advice or assistance in such respect, and disclaims any liability for damages in respect of any failure of any back-up or archival. Hyland assumes no obligations to back up and/or archive Customer Content.
(c) Security. Customer shall be solely responsible for the security of the environment in which it uses the Nuxeo Platform and deploys Client Applications and for determining whether the security of such environment is commensurate with Customer’s needs.
3. AVAILABILITY OF CUSTOMER DATA UPON TERMINATION. Upon termination (including non-renewal) of this these Nuxeo Subscription Terms or this Agreement, whichever occurs first, Hyland will make available, and Customer may access and retrieve, all customer data, including Customer Content, application configuration, metadata, and binaries for both Production and Non-Production environments to Customer for 60 days after termination; thereafter, all such data, including Customer Content, will be deleted. The information will be shared in the form of application configuration files, database backup, XML files and binaries. Notwithstanding the foregoing, any knowledge transfer/sharing of methodologies or technologies used to host Nuxeo Studio will not be included.
4. CONTROLLING LANGUAGE. Hyland may make other versions of these Nuxeo Subscription Terms available in other languages at this online location. This English language version of these Nuxeo Subscription Terms controls over any version of the Nuxeo Subscription Terms made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Nuxeo Subscription Terms are not made available at this online location in the Other Language, this English language version controls over any other version of the Nuxeo Subscription Terms that may be made available at this online location in another language.
Nuxeo Studio – Service Level Agreement
x = ((n - y)/n) * 100
Where:
- x = Availability Percentage (expressed as percentage rounded to 2 decimal place)
- n = hours Nuxeo Studio is available in a given month (excluding the Maintenance Window)
- y = hours Nuxeo Studio is unavailable in a given month (excluding the Maintenance Window)
SLA | SLA Credits |
Nuxeo Studio Availability SLA | 2.5% of the fee for the Nuxeo Services for the applicable month (calculated pro rata) for each 0.25% below the Availability Target |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 3rd 2023 to October 4th 2023
DownloadTable of Contents
NUXEO SUBSCRIPTION TERMS
As of the Effective Date of the Incorporating Document (as defined below), these Nuxeo Subscription Terms (these “Nuxeo Subscription Terms”) are part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of these Nuxeo Subscription Terms.
DEFINED TERMS
All capitalized terms used in these Nuxeo Subscription Terms shall have the meaning ascribed them herein or, if not defined herein, the General Terms Schedule or the Subscription Schedule. If any capitalized terms used herein are not defined in these Nuxeo Subscription Terms or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Nuxeo Services.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Nuxeo” means products and services branded by Hyland as Nuxeo and licensed or purchased, as applicable, under the terms of the Agreement.
“Nuxeo Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. A Nuxeo Instance may also be referred to as a Nuxeo Server and may be illustrated as a Nuxeo Server, Nuxeo Node or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications.
“Nuxeo Services” shall mean the Nuxeo services, including Nuxeo Studio, provided by Hyland by means of access to certain content and use of the features and functionality of software applications, solely to the extent set forth and further described in, and as limited by, the applicable Order Forms executed by the parties.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“Pre-Production Environment” or “Non-Production Environment” means a collection of Nuxeo Instances comprising the environment containing full or partial production quality data, hardware and software needed to perform production support, staging, or other pre-production activities.
“Production Environment” means a collection of Nuxeo Instances comprising the environment containing final production data, hardware, and software needed to perform the day-to-day operations of Customer
“Service Limits” means the limitations set forth in either the Order Form relating to Nuxeo Services.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio User to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
1. NUXEO LICENSE TERMS. The parties acknowledge and agree that, except for Sections 1.1 – 1.4, 1.10 and 1.12 of the Subscription Schedule (the “Excluded Terms”), the Nuxeo Services shall be deemed to be “Software” for purposes of the Agreement. Notwithstanding the foregoing, the parties acknowledge and agree that, in addition to the terms of the Agreement (other than the Excluded Terms), Customer’s use of the Nuxeo Services shall be subject to the following license terms:
(a) Nuxeo Services Access and Use. Subject to Customer’s payment in full of the Subscription Fees, and subject further to Customer’s compliance with this Agreement, Hyland grants to Customer a revocable, non-exclusive, non-transferable right to access the features and functions of the applicable Nuxeo Services ordered by Customer during the Term Length identified in the Order Form and up to the Service Limits. On or as soon as reasonably practicable after the Effective Date or as set forth in the applicable Order Form for the purchase of Nuxeo Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access the Nuxeo Services, which may include the following as set forth in the applicable Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Maintenance and Support provisions set forth in the Subscription Schedule. Hyland will provide access to Nuxeo Studio in accordance with the Nuxeo Studio Service Level Agreement attached hereto. Hyland shall, at its own expense, provide for the hosting of the Nuxeo Studio which is accessible as part of the Nuxeo Services, provided that nothing herein shall be construed to require Hyland to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer to provide access from the internet to the Nuxeo Services. Customer is solely responsible for managing the Nuxeo Platform. Should Customer wish to purchase cloud services to have Hyland manage Customer’s Nuxeo Platform, Hyland and Customer shall enter into a separate Order Form or an amendment to this Agreement for such cloud services which may be subject to an additional Schedule or terms added to an Order Form.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and this Agreement does not impact any rights and obligations with respect to the Nuxeo Platform. During the term of the Subscription Schedule, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Maintenance and Support provisions set forth in the Subscription Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Nuxeo Instances as part of the Nuxeo Services during the term of the Subscription Schedule. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
(c) Reporting and Auditing. Customer shall notify Hyland promptly if the actual number of Nuxeo Instance(s) utilized by Customer exceeds the number of Nuxeo Instance(s) permitted (and for which Subscription Fees have been paid) under this Agreement. In its notice, Customer shall indicate the number of additional Nuxeo Instances and the date(s) on which such Nuxeo Instances were first used. Hyland shall invoice Customer for such additional Nuxeo Instances on a pro rata basis, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an applicable Order Form. If Hyland audits Customer’s use of Nuxeo Instances in accordance with the Subscription Schedule and discovers underreported Nuxeo Instances, Hyland will give Customer written notice of the noncompliance, including the number of underreported Nuxeo Instances, and a new or adjusted invoice to account for the underreporting Instances. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported Nuxeo Instance(s). If the audit reveals that Customer underreported more than one Nuxeo Instance, Customer shall pay Hyland for the reasonable costs incurred to perform the audit.
(d) Use of Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data, media and content provided by Customer through its use of the Nuxeo Services (collectively, “Customer Content”). Customer retains all right, title and interest in and to the Customer Content, and Hyland acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Subject to the foregoing, Customer hereby grants Hyland a non-exclusive, non-transferable right and license to use the Customer Content during the term of the Agreement for the limited purposes of performing Hyland’s obligations under this Agreement. Customer hereby represents and warrants that it owns or otherwise has sufficient rights to grant Hyland access to the Customer Content to the extent necessary to perform the Nuxeo Services, and/or Professional Services in accordance with the terms of the Agreement. Customer acknowledges and agrees that Hyland may also use the Customer Content in an aggregate or de-identified format to develop and improve the Nuxeo Services and other services.
2. CUSTOMER RESPONSIBILITIES.
(a) Customer Content. Customer and its end users of Client Applications may access the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other access protocols required in order to access the Nuxeo Services.
(b) Back-Up and Archival. Customer is solely responsible for the back-up and archival of the Customer Content, and Hyland expressly disclaims any obligation to provide any advice or assistance in such respect, and disclaims any liability for damages in respect of any failure of any back-up or archival. Hyland assumes no obligations to back up and/or archive Customer Content.
(c) Security. Customer shall be solely responsible for the security of the environment in which it uses the Nuxeo Platform and deploys Client Applications and for determining whether the security of such environment is commensurate with Customer’s needs.
3. AVAILABILITY OF CUSTOMER DATA UPON TERMINATION. Upon termination (including non-renewal) of this these Nuxeo Subscription Terms or this Agreement, whichever occurs first, Hyland will make available, and Customer may access and retrieve, all customer data, including Customer Content, application configuration, metadata, and binaries for both Production and Non-Production environments to Customer for 60 days after termination; thereafter, all such data, including Customer Content, will be deleted. The information will be shared in the form of application configuration files, database backup, XML files and binaries. Notwithstanding the foregoing, any knowledge transfer/sharing of methodologies or technologies used to host Nuxeo Studio will not be included.
4. CONTROLLING LANGUAGE. Hyland may make other versions of these Nuxeo Subscription Terms available in other languages at this online location. This English language version of these Nuxeo Subscription Terms controls over any version of the Nuxeo Subscription Terms made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Nuxeo Subscription Terms are not made available at this online location in the Other Language, this English language version controls over any other version of the Nuxeo Subscription Terms that may be made available at this online location in another language.
Nuxeo Studio – Service Level Agreement
x = ((n - y)/n) * 100
Where:
- x = Availability Percentage (expressed as percentage rounded to 2 decimal place)
- n = hours Nuxeo Studio is available in a given month (excluding the Maintenance Window)
- y = hours Nuxeo Studio is unavailable in a given month (excluding the Maintenance Window)
SLA | SLA Credits |
Nuxeo Studio Availability SLA | 2.5% of the fee for the Nuxeo Services for the applicable month (calculated pro rata) for each 0.25% below the Availability Target |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective December 7th 2022 to June 3rd 2023
DownloadTable of Contents
- x = Availability Percentage (expressed as percentage rounded to 2 decimal place)
- n = hours Nuxeo Studio is available in a given month (excluding the Maintenance Window)
- y = hours Nuxeo Studio is unavailable in a given month (excluding the Maintenance Window)
SLA | SLA Credits |
Nuxeo Studio Availability SLA | 2.5% of the fee for the Nuxeo Services for the applicable month (calculated pro rata) for each 0.25% below the Availability Target |
Under Construction
Support Prioritization Attachment - Subscription Licenses
Effective May 30th 2023
DownloadTable of Contents
SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any Error that causes total or substantial Software failure, which means that the Software is down and Customer is unable to access the Software in any way within their production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support manager. Within thirty (30) minutes, the Manager will notify a member of senior management. If there is no Resolution within two (2) hours of the Customer’s notice, Hyland will place the Customer on the High Visibility Ticker (HVT). If there is no Resolution within four (4) hours of the Customer’s notice or by the end of business of that day, Hyland will designate the Error as Code Blue. Designation as Code Blue means a resolution team is immediately formed for the Level 1 Error and the resolution team provides continuous updates on all issues of change or status to all C-level executives and vice presidents of Hyland, and all of Hyland employees are made aware that the Customer is on Code Blue. To provide a Resolution, Hyland will match the Customer’s effort, up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 2 | “Level 2” means an Error that causes substantial Software failure which prevents a portion of Customer’s users from accessing the Software in any way within the production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support manager within sixty (60) minutes. Within two (2) hours, the manager will notify a member of senior management. If there is no Resolution by the end of business on that day, Hyland will place the Customer on Hyland’s High Visibility Ticker. If there is no Resolution within twenty-four (24) hours of Customer’s notice, Hyland will designate the Error as Code Blue. To provide a Resolution, Hyland will match Customer’s efforts up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 3 | “Level 3” means that the Software is usable except that an Error causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will match Customer’s efforts up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution. |
Level 4 | “Level 4” means that the Software is usable except that an Error prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Software is usable except that an Error causes a trivial inconvenience and the task can be completed in another way | Standard Maintenance and Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Maintenance and Support. |
*Notwithstanding the above, Maintenance and Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
** Notwithstanding the above, Maintenance and Support for the Nuxeo Software is limited to the following hours:
- for Customers in Europe and the UK, except France public holidays: 9:00 – 6:00 Central European Time
- for all other Customers: 9:00 – 6:00 Eastern Time
Effective May 30th 2023
DownloadADJUNTO DE PRIORIZACIÓN DE SOPORTE
| Nivel de severidad | Descripción | Respuesta de Hyland |
| Nivel 1 | “Nivel 1” es cualquier Error que cause una falla total o sustancial del Software, lo que significa que el Software no está operando y que el Cliente no puede acceder a él de ninguna forma dentro de su entorno de producción. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará inmediatamente a un Administrador de Soporte. Dentro de los siguientes treinta (30) minutos, el Administrador le avisará a un Gerente sénior o Vicepresidente. Si no hay ninguna Reparación dos (2) horas después de la notificación del Cliente, Hyland pondrá al Cliente en el Sistema de Alta Visibilidad (HVT). Si no hay ninguna Reparación cuatro (4) horas después de la notificación del Cliente o para el final del día laboral, Hyland designará el Error como Código azul. Código Azul significa que se forma inmediatamente un equipo de reparación para el Error el Nivel 1, el cual proporciona actualizaciones continuas sobre todos los cambios o estados a los Ejecutivos de nivel C o Vicepresidentes de Hyland, y todos los empleados son informados de que el Cliente está en Código Azul. Para proporcionar una Reparación, Hyland igualará los esfuerzos del Cliente, hasta 24 horas al día, 7 días a la semana, incluyendo días festivos y fines de semana hasta que haya una Reparación. |
| Nivel 2 | “Nivel 2” es cualquier Error que cause una falla sustancial del Software que no permita que una parte de los usuarios del Cliente acceda al Software dentro de su entorno de producción. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará a un Administrador de Soporte durante los siguientes sesenta (60) minutos. Dentro de las siguientes dos (2) horas, el Administrador le avisará a un Gerente sénior o Vicepresidente. Si no hay Reparación al final del día laboral, Hyland colocará al Cliente en el Sistema de Alta Visibilidad. Si no hay ninguna resolución veinticuatro (24) horas después de la notificación del Cliente, Hyland designará el Error como Código Azul. Para proporcionar una Reparación, Hyland igualará los esfuerzos del Cliente, hasta 24 horas al día, 7 días a la semana, incluyendo días festivos y fines de semana hasta que haya una Reparación. |
| Nivel 3 | “Nivel 3” significa que se puede usar el Software, pero hay un Error que causa una degradación de desempeño severa, continua y en todo el sistema. | Para proporcionar una Reparación, Hyland igualará los esfuerzos del Cliente, hasta 5 días a la semana, 16 horas al día, incluyendo días festivos y fines de semana hasta que haya una Reparación. |
| Nivel 4 | “Nivel 4” significa que se puede usar el Software, pero hay un Error que no permite que alguna característica o funcionalidad específica funcione. | Para proporcionar una Reparación, Hyland usará esfuerzos razonables durante las horas regulares de soporte. |
| Nivel 5 | “Nivel 5” significa que se puede usar el Software, pero hay un Error que causa una inconveniencia trivial y la tarea puede hacerse de otra forma. | Mantenimiento y Soporte estándar. |
| Nivel 6 | “Nivel 6” significa Servicios de Soporte Técnico. | Mantenimiento y Soporte estándar. |
* No obstante lo anterior, el Mantenimiento y Soporte del software Pacsgear se limita a las siguientes horas:
- Para Clientes en Europa: 8:00-5:00 hora de RU (GMT +1)
- Para todos los demás Clientes: 7:00-7:00 hora central (Estados Unidos de América)
Effective May 30th 2023 to May 30th 2023
DownloadTable of Contents
SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any Error that causes total or substantial Software failure, which means that the Software is down and Customer is unable to access the Software in any way within their production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support manager. Within thirty (30) minutes, the Manager will notify a member of senior management. If there is no Resolution within two (2) hours of the Customer’s notice, Hyland will place the Customer on the High Visibility Ticker (HVT). If there is no Resolution within four (4) hours of the Customer’s notice or by the end of business of that day, Hyland will designate the Error as Code Blue. Designation as Code Blue means a resolution team is immediately formed for the Level 1 Error and the resolution team provides continuous updates on all issues of change or status to all C-level executives and vice presidents of Hyland, and all of Hyland employees are made aware that the Customer is on Code Blue. To provide a Resolution, Hyland will match the Customer’s effort, up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 2 | “Level 2” means an Error that causes substantial Software failure which prevents a portion of Customer’s users from accessing the Software in any way within the production environment. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support manager within sixty (60) minutes. Within two (2) hours, the manager will notify a member of senior management. If there is no Resolution by the end of business on that day, Hyland will place the Customer on Hyland’s High Visibility Ticker. If there is no Resolution within twenty-four (24) hours of Customer’s notice, Hyland will designate the Error as Code Blue. To provide a Resolution, Hyland will match Customer’s efforts up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution. |
Level 3 | “Level 3” means that the Software is usable except that an Error causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will match Customer’s efforts up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution. |
Level 4 | “Level 4” means that the Software is usable except that an Error prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Software is usable except that an Error causes a trivial inconvenience and the task can be completed in another way | Standard Maintenance and Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Maintenance and Support. |
*Notwithstanding the above, Maintenance and Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
** Notwithstanding the above, Maintenance and Support for the Nuxeo Software is limited to the following hours:
- for Customers in Europe and the UK, except France public holidays: 9:00 – 6:00 Central European Time
- for all other Customers: 9:00 – 6:00 Eastern Time
Support Prioritization Attachment - Hyland Cloud Services
Effective August 22nd 2023
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SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Cloud Service that causes total or substantial Hyland Cloud Service failure, which means that the Hyland Cloud Service is down and Customer is unable to access the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Cloud Service that causes substantial Hyland Cloud Service failure which prevents a portion of Customer’s users from accessing the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Cloud Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Cloud Service Support. |
*Notwithstanding the above, Hyland Cloud Service Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00am - 5:00pm UK Time (GMT +1); and
- for all other Customers: 7:00am - 7:00pm Central Time
Effective August 22nd 2023
DownloadANLAGE - PRIORISIERUNG VON WARTUNG UND SUPPORT
| Schweregrad | Beschreibung | Hyland’s Reaktion |
| Stufe 1 | "Stufe 1" bezeichnet einen Fehler oder ein Problem im Hyland Cloud-Dienst, das zu einem vollständigen oder erheblichen Ausfall des Hyland Cloud-Dienstes führt, was bedeutet, dass der Hyland Cloud-Dienst ausgefallen ist und der Kunde nicht in der Lage ist, in irgendeiner Weise auf den Hyland Cloud-Dienst zuzugreifen | Nach Erhalt der Benachrichtigung durch den Kunden setzt der Support-Teamleiter von Hyland unverzüglich einen Support-Manager in Kenntnis. Innerhalb von dreißig (30) Minuten benachrichtigt der Manager ein Mitglied der Geschäftsleitung oder einen Vizepräsidenten.
Um eine Lösung bereitzustellen, arbeitet Hyland bis zu 24 Stunden an 7 Tagen in der Woche, auch an Feiertagen und Wochenenden, bis eine Lösung vorliegt, vorausgesetzt, der Kunde bleibt ab dem Zeitpunkt, an dem Hyland die Benachrichtigung erhält, bis zur Fehlerbehebung telefonisch erreichbar. |
| Stufe 2 | "Stufe 2" bezeichnet einen Fehler oder ein Problem im Hyland Cloud-Dienst, der zu einem erheblichen Ausfall des Hyland Cloud-Dienstes führt und verhindert, dass ein Teil der Benutzer des Kunden auf irgendeine Weise auf den Hyland Cloud-Dienst zugreifen kann. | Nach Erhalt der Benachrichtigung durch den Kunden, setzt der Support-Teamleiter von Hyland innerhalb von 60 Minuten einen Support-Manager in Kenntnis. Innerhalb von zwei (2) Stunden benachrichtigt der Manager ein Mitglied der nächsthöheren Führungsebene oder einen Vizepräsidenten.
Um eine Lösung bereitzustellen, arbeitet Hyland bis zu 24 Stunden an 7 Tagen in der Woche, auch an Feiertagen und Wochenenden, bis eine Lösung vorliegt, vorausgesetzt, der Kunde bleibt ab dem Zeitpunkt, an dem Hyland die Benachrichtigung erhält, bis zur Fehlerbehebung telefonisch erreichbar. |
| Stufe 3 | "Level 3" bedeutet, dass der Hyland Cloud-Dienst nutzbar ist, außer dass ein Fehler oder ein Problem im Hyland Cloud-Dienst eine andauernde, systemweite, schwerwiegende Leistungsverschlechterung verursacht. | Um eine Lösung bereitzustellen, arbeitet Hyland bis zu 5 Tage/Woche, 16 Stunden/Tag, auch an Feiertagen und Wochenenden, bis eine Lösung vorliegt, vorausgesetzt der Kunde bleibt ab dem Zeitpunkt, an dem Hyland die Benachrichtigung erhält, bis zur Fehlerbehebung telefonisch erreichbar. |
| Stufe 4 | "Level 4" bedeutet, dass der Hyland Cloud-Dienst nutzbar ist, mit der Ausnahme, dass ein Fehler oder ein Problem im Hyland Cloud-Dienst verhindert, dass ein bestimmtes Feature oder eine bestimmte Funktionalität funktioniert. | Hyland unternimmt während der regulären Support-Zeiten alle angemessenen Anstrengungen, um eine Lösung zu finden. |
| Stufe 5 | "Level 5" bedeutet, dass der Hyland Cloud-Dienst nutzbar ist, außer dass ein Fehler oder ein Problem im Hyland Cloud-Dienst eine triviale Unannehmlichkeit verursacht und die Aufgabe auf andere Weise erledigt werden kann. | Standard Hyland Cloud-Dienst-Support. |
| Stufe 6 | „Stufe 6“ bezieht sich auf Technische Supportleistungen. | Standard Hyland Cloud-Dienst-Support. |
* Ungeachtet des obenstehenden ist die Hyland Cloud-Dienst-Support für die Pacsgear-Software Produkte auf die folgenden Zeiten beschränkt:
- für Kunden in Europa: 8:00-17:00 UK-Zeit (GMT +1)
- für alle anderen Kunden: 7:00-7:00 Central Time
Effective August 22nd 2023
DownloadADJUNTO DE PRIORIZACIÓN DE SOPORTE
| Nivel de severidad | Descripción | Respuesta de Hyland |
| Nivel 1 | "Nivel 1" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla total o sustancial de el Servicio en la Nube de Hyland, lo que significa que está caída y que el Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará inmediatamente a un Administrador de Soporte. Dentro de los siguientes treinta (30) minutos, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 2 | "Nivel 2" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla sustancial de el Servicio en la Nube de Hyland lo que significa que una parte de los usuarios del Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará a un Administrador de Soporte durante los siguientes sesenta (60) minutos. Dentro de las siguientes dos (2) horas, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 3 | “Nivel 3” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una degradación de desempeño severa, continua y en todo el sistema. | Para proporcionar una Reparación, Hyland trabajará hasta 5 días a la semana, 16 horas al día, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 4 | “Nivel 4” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que no permite que se haga alguna característica o funcionalidad específica. | Para proporcionar una Reparación, Hyland tomará las acciones que resulten razonables durante las horas regulares de soporte. |
| Nivel 5 | “Nivel 5” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una inconveniencia trivial y la tarea puede hacerse de otra forma. | Soporte estándar para el Servicio en la Nube de Hyland. |
| Nivel 6 | “Nivel 6” significa Servicios de Soporte Técnico. | Soporte estándar para el Servicio en la Nube de Hyland. |
* No obstante lo anterior, el Mantenimiento y Soporte del software Pacsgear se limita a las siguientes horas:
- Para clientes en Europa: 8:00-5:00 hora de RU (GMT +1)
- Para todos los demás Clientes: 7:00-7:00 hora central (Estados Unidos de América)
Effective August 22nd 2023
Download| Nível de Gravidade | Descrição | Resposta da Hyland |
| Nível 1 | "Nível 1" significa qualquer erro ou problema no Serviço de Nuvem da Hyland que causa falha total ou substancial no Serviço de Nuvem da Hyland, o que significa que o Serviço de Nuvem da Hyland está inativa e o Cliente não consegue acessar o Serviço de Nuvem da Hyland de nenhuma maneira. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará imediatamente um gerente de suporte. Dentro de 30 (trinta) minutos, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalhará até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, contanto que o Cliente permaneça acessível por telefone para solucionar os problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
| Nível 2 | "Nível 2" significa um erro ou problema no Serviço de Nuvem da Hyland que causa uma falha substancial no Serviço de Nuvem da Hyland, impedindo que uma parte dos usuários do Cliente acesse o Serviço de Nuvem da Hyland de qualquer forma. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará um gerente de suporte dentro de 60 (sessenta) minutos. Dentro de 2 (duas) horas, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalha até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
| Nível 3 | “Nível 3” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa uma degradação grave e contínua do desempenho em todo o sistema. | Para fornecer uma Resolução, a Hyland trabalha até 5 dias por semana, 16 horas por dia, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
| Nível 4 | “Nível 4” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland impede que um recurso ou funcionalidade específica funcione. | Para fornecer uma Resolução, a Hyland envidará esforços razoáveis durante o horário regular de suporte. |
| Nível 5 | “Nível 5” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa um inconveniente trivial e a tarefa pode ser concluída de outra maneira. | Suporte ao Serviço de Nuvem da Hyland Padrão |
| Nível 6 | “Nível 6” significa Serviços de Suporte Técnico. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Effective May 31st 2023 to August 22nd 2023
DownloadTable of Contents
SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Cloud Service that causes total or substantial Hyland Cloud Service failure, which means that the Hyland Cloud Service is down and Customer is unable to access the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Cloud Service that causes substantial Hyland Cloud Service failure which prevents a portion of Customer’s users from accessing the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Cloud Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Cloud Service Support. |
*Notwithstanding the above, Hyland Cloud Service Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
Effective May 31st 2023 to August 22nd 2023
DownloadANLAGE - PRIORISIERUNG VON WARTUNG UND SUPPORT
| Schweregrad | Beschreibung | Hyland’s Reaktion |
| Stufe 1 | "Stufe 1" bezeichnet einen Fehler oder ein Problem im Hyland Cloud-Dienst, das zu einem vollständigen oder erheblichen Ausfall des Hyland Cloud-Dienstes führt, was bedeutet, dass der Hyland Cloud-Dienst ausgefallen ist und der Kunde nicht in der Lage ist, in irgendeiner Weise auf den Hyland Cloud-Dienst zuzugreifen | Nach Erhalt der Benachrichtigung durch den Kunden setzt der Support-Teamleiter von Hyland unverzüglich einen Support-Manager in Kenntnis. Innerhalb von dreißig (30) Minuten benachrichtigt der Manager ein Mitglied der Geschäftsleitung oder einen Vizepräsidenten.
Um eine Lösung bereitzustellen, arbeitet Hyland bis zu 24 Stunden an 7 Tagen in der Woche, auch an Feiertagen und Wochenenden, bis eine Lösung vorliegt, vorausgesetzt, der Kunde bleibt ab dem Zeitpunkt, an dem Hyland die Benachrichtigung erhält, bis zur Fehlerbehebung telefonisch erreichbar. |
| Stufe 2 | "Stufe 2" bezeichnet einen Fehler oder ein Problem im Hyland Cloud-Dienst, der zu einem erheblichen Ausfall des Hyland Cloud-Dienstes führt und verhindert, dass ein Teil der Benutzer des Kunden auf irgendeine Weise auf den Hyland Cloud-Dienst zugreifen kann. | Nach Erhalt der Benachrichtigung durch den Kunden, setzt der Support-Teamleiter von Hyland innerhalb von 60 Minuten einen Support-Manager in Kenntnis. Innerhalb von zwei (2) Stunden benachrichtigt der Manager ein Mitglied der nächsthöheren Führungsebene oder einen Vizepräsidenten.
Um eine Lösung bereitzustellen, arbeitet Hyland bis zu 24 Stunden an 7 Tagen in der Woche, auch an Feiertagen und Wochenenden, bis eine Lösung vorliegt, vorausgesetzt, der Kunde bleibt ab dem Zeitpunkt, an dem Hyland die Benachrichtigung erhält, bis zur Fehlerbehebung telefonisch erreichbar. |
| Stufe 3 | "Level 3" bedeutet, dass der Hyland Cloud-Dienst nutzbar ist, außer dass ein Fehler oder ein Problem im Hyland Cloud-Dienst eine andauernde, systemweite, schwerwiegende Leistungsverschlechterung verursacht. | Um eine Lösung bereitzustellen, arbeitet Hyland bis zu 5 Tage/Woche, 16 Stunden/Tag, auch an Feiertagen und Wochenenden, bis eine Lösung vorliegt, vorausgesetzt der Kunde bleibt ab dem Zeitpunkt, an dem Hyland die Benachrichtigung erhält, bis zur Fehlerbehebung telefonisch erreichbar. |
| Stufe 4 | "Level 4" bedeutet, dass der Hyland Cloud-Dienst nutzbar ist, mit der Ausnahme, dass ein Fehler oder ein Problem im Hyland Cloud-Dienst verhindert, dass ein bestimmtes Feature oder eine bestimmte Funktionalität funktioniert. | Hyland unternimmt während der regulären Support-Zeiten alle angemessenen Anstrengungen, um eine Lösung zu finden. |
| Stufe 5 | "Level 5" bedeutet, dass der Hyland Cloud-Dienst nutzbar ist, außer dass ein Fehler oder ein Problem im Hyland Cloud-Dienst eine triviale Unannehmlichkeit verursacht und die Aufgabe auf andere Weise erledigt werden kann. | Standard Hyland Cloud-Dienst-Support. |
| Stufe 6 | „Stufe 6“ bezieht sich auf Technische Supportleistungen. | Standard Hyland Cloud-Dienst-Support. |
* Ungeachtet des obenstehenden ist die Hyland Cloud-Dienst-Support für die Pacsgear-Software Produkte auf die folgenden Zeiten beschränkt:
- für Kunden in Europa: 8:00-17:00 UK-Zeit (GMT +1)
- für alle anderen Kunden: 7:00-7:00 Central Time
Effective May 31st 2023 to August 22nd 2023
DownloadADJUNTO DE PRIORIZACIÓN DE SOPORTE
| Nivel de severidad | Descripción | Respuesta de Hyland |
| Nivel 1 | "Nivel 1" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla total o sustancial de el Servicio en la Nube de Hyland, lo que significa que está caída y que el Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará inmediatamente a un Administrador de Soporte. Dentro de los siguientes treinta (30) minutos, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 2 | "Nivel 2" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla sustancial de el Servicio en la Nube de Hyland lo que significa que una parte de los usuarios del Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará a un Administrador de Soporte durante los siguientes sesenta (60) minutos. Dentro de las siguientes dos (2) horas, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 3 | “Nivel 3” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una degradación de desempeño severa, continua y en todo el sistema. | Para proporcionar una Reparación, Hyland trabajará hasta 5 días a la semana, 16 horas al día, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 4 | “Nivel 4” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que no permite que se haga alguna característica o funcionalidad específica. | Para proporcionar una Reparación, Hyland tomará las acciones que resulten razonables durante las horas regulares de soporte. |
| Nivel 5 | “Nivel 5” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una inconveniencia trivial y la tarea puede hacerse de otra forma. | Soporte estándar para el Servicio en la Nube de Hyland. |
| Nivel 6 | “Nivel 6” significa Servicios de Soporte Técnico. | Soporte estándar para el Servicio en la Nube de Hyland. |
* No obstante lo anterior, el Mantenimiento y Soporte del software Pacsgear se limita a las siguientes horas:
- Para clientes en Europa: 8:00-5:00 hora de RU (GMT +1)
- Para todos los demás Clientes: 7:00-7:00 hora central (Estados Unidos de América)
Effective May 31st 2023 to August 22nd 2023
Download| Nível de Gravidade | Descrição | Resposta da Hyland |
| Nível 1 | "Nível 1" significa qualquer erro ou problema no Serviço de Nuvem da Hyland que causa falha total ou substancial no Serviço de Nuvem da Hyland, o que significa que o Serviço de Nuvem da Hyland está inativa e o Cliente não consegue acessar o Serviço de Nuvem da Hyland de nenhuma maneira. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará imediatamente um gerente de suporte. Dentro de 30 (trinta) minutos, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalhará até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, contanto que o Cliente permaneça acessível por telefone para solucionar os problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
| Nível 2 | "Nível 2" significa um erro ou problema no Serviço de Nuvem da Hyland que causa uma falha substancial no Serviço de Nuvem da Hyland, impedindo que uma parte dos usuários do Cliente acesse o Serviço de Nuvem da Hyland de qualquer forma. | Ao receber uma notificação do Cliente, o contato do Suporte Técnico da Hyland notificará um gerente de suporte dentro de 60 (sessenta) minutos. Dentro de 2 (duas) horas, o gerente notificará um membro da administração sênior. Para fornecer uma Resolução, a Hyland trabalha até 24 horas por dia, 7 dias por semana, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
| Nível 3 | “Nível 3” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa uma degradação grave e contínua do desempenho em todo o sistema. | Para fornecer uma Resolução, a Hyland trabalha até 5 dias por semana, 16 horas por dia, durante feriados e fins de semana até que haja uma Resolução, desde que o Cliente permaneça acessível por telefone para solucionar problemas a partir do momento em que a Hyland receber a notificação durante a Resolução. |
| Nível 4 | “Nível 4” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland impede que um recurso ou funcionalidade específica funcione. | Para fornecer uma Resolução, a Hyland envidará esforços razoáveis durante o horário regular de suporte. |
| Nível 5 | “Nível 5” significa que o Serviço de Nuvem da Hyland é utilizável, com a exceção de que um erro ou problema no Serviço de Nuvem da Hyland causa um inconveniente trivial e a tarefa pode ser concluída de outra maneira. | Suporte ao Serviço de Nuvem da Hyland Padrão |
| Nível 6 | “Nível 6” significa Serviços de Suporte Técnico. | Suporte ao Serviço de Nuvem da Hyland Padrão |
Effective May 30th 2023 to May 31st 2023
DownloadTable of Contents
SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Cloud Service that causes total or substantial Hyland Cloud Service failure, which means that the Hyland Cloud Service is down and Customer is unable to access the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Cloud Service that causes substantial Hyland Cloud Service failure which prevents a portion of Customer’s users from accessing the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Cloud Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Cloud Service Support. |
*Notwithstanding the above, Hyland Cloud Service Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
Effective May 30th 2023 to May 31st 2023
DownloadADJUNTO DE PRIORIZACIÓN DE SOPORTE
| Nivel de severidad | Descripción | Respuesta de Hyland |
| Nivel 1 | "Nivel 1" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla total o sustancial de el Servicio en la Nube de Hyland, lo que significa que está caída y que el Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará inmediatamente a un Administrador de Soporte. Dentro de los siguientes treinta (30) minutos, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 2 | "Nivel 2" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla sustancial de el Servicio en la Nube de Hyland lo que significa que una parte de los usuarios del Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará a un Administrador de Soporte durante los siguientes sesenta (60) minutos. Dentro de las siguientes dos (2) horas, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 3 | “Nivel 3” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una degradación de desempeño severa, continua y en todo el sistema. | Para proporcionar una Reparación, Hyland trabajará hasta 5 días a la semana, 16 horas al día, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 4 | “Nivel 4” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que no permite que se haga alguna característica o funcionalidad específica. | Para proporcionar una Reparación, Hyland tomará las acciones que resulten razonables durante las horas regulares de soporte. |
| Nivel 5 | “Nivel 5” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una inconveniencia trivial y la tarea puede hacerse de otra forma. | Soporte estándar para el Servicio en la Nube de Hyland. |
| Nivel 6 | “Nivel 6” significa Servicios de Soporte Técnico. | Soporte estándar para el Servicio en la Nube de Hyland. |
* No obstante lo anterior, el Mantenimiento y Soporte del software Pacsgear se limita a las siguientes horas:
- Para clientes en Europa: 8:00-5:00 hora de RU (GMT +1)
- Para todos los demás Clientes: 7:00-7:00 hora central (Estados Unidos de América)
Effective May 30th 2023 to May 30th 2023
DownloadTable of Contents
SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Cloud Service that causes total or substantial Hyland Cloud Service failure, which means that the Hyland Cloud Service is down and Customer is unable to access the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Cloud Service that causes substantial Hyland Cloud Service failure which prevents a portion of Customer’s users from accessing the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Cloud Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Cloud Service Support. |
*Notwithstanding the above, Hyland Cloud Service Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
Effective May 30th 2023 to May 30th 2023
DownloadADJUNTO DE PRIORIZACIÓN DE SOPORTE
| Nivel de severidad | Descripción | Respuesta de Hyland |
| Nivel 1 | "Nivel 1" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla total o sustancial de el Servicio en la Nube de Hyland, lo que significa que está caída y que el Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará inmediatamente a un Administrador de Soporte. Dentro de los siguientes treinta (30) minutos, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 2 | "Nivel 2" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla sustancial de el Servicio en la Nube de Hyland lo que significa que una parte de los usuarios del Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará a un Administrador de Soporte durante los siguientes sesenta (60) minutos. Dentro de las siguientes dos (2) horas, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 3 | “Nivel 3” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una degradación de desempeño severa, continua y en todo el sistema. | Para proporcionar una Reparación, Hyland trabajará hasta 5 días a la semana, 16 horas al día, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 4 | “Nivel 4” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que no permite que se haga alguna característica o funcionalidad específica. | Para proporcionar una Reparación, Hyland tomará las acciones que resulten razonables durante las horas regulares de soporte. |
| Nivel 5 | “Nivel 5” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una inconveniencia trivial y la tarea puede hacerse de otra forma. | Soporte estándar para el Servicio en la Nube de Hyland. |
| Nivel 6 | “Nivel 6” significa Servicios de Soporte Técnico. | Soporte estándar para el Servicio en la Nube de Hyland. |
* No obstante lo anterior, el Mantenimiento y Soporte del software Pacsgear se limita a las siguientes horas:
- Para clientes en Europa: 8:00-5:00 hora de RU (GMT +1)
- Para todos los demás Clientes: 7:00-7:00 hora central (Estados Unidos de América)
Effective May 30th 2023 to May 30th 2023
DownloadTable of Contents
SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Cloud Service that causes total or substantial Hyland Cloud Service failure, which means that the Hyland Cloud Service is down and Customer is unable to access the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Cloud Service that causes substantial Hyland Cloud Service failure which prevents a portion of Customer’s users from accessing the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Cloud Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Cloud Service Support. |
*Notwithstanding the above, Hyland Cloud Service Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
Effective May 30th 2023 to May 30th 2023
DownloadADJUNTO DE PRIORIZACIÓN DE SOPORTE
| Nivel de severidad | Descripción | Respuesta de Hyland |
| Nivel 1 | "Nivel 1" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla total o sustancial de el Servicio en la Nube de Hyland, lo que significa que está caída y que el Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará inmediatamente a un Administrador de Soporte. Dentro de los siguientes treinta (30) minutos, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 2 | "Nivel 2" es cualquier error o problema en el Servicio en la Nube de Hyland que causa una falla sustancial de el Servicio en la Nube de Hyland lo que significa que una parte de los usuarios del Cliente no puede acceder a ella de ninguna forma. | Al recibir la notificación del Cliente, el contacto de Soporte Técnico de Hyland lo comunicará a un Administrador de Soporte durante los siguientes sesenta (60) minutos. Dentro de las siguientes dos (2) horas, el Administrador le avisará a un Gerente sénior o Vicepresidente.
Para proporcionar una Reparación, Hyland trabajará hasta 24 horas al día, 7 días a la semana, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 3 | “Nivel 3” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una degradación de desempeño severa, continua y en todo el sistema. | Para proporcionar una Reparación, Hyland trabajará hasta 5 días a la semana, 16 horas al día, durante días feriados y fines de semana hasta que haya una Reparación, siempre y cuando el Cliente permanezca accesible por teléfono para resolver problemas desde el momento en que Hyland recibe la notificación hasta que se tenga la Reparación. |
| Nivel 4 | “Nivel 4” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que no permite que se haga alguna característica o funcionalidad específica. | Para proporcionar una Reparación, Hyland tomará las acciones que resulten razonables durante las horas regulares de soporte. |
| Nivel 5 | “Nivel 5” significa que se puede usar el Servicio en la Nube de Hyland, pero hay un error o problema que causa una inconveniencia trivial y la tarea puede hacerse de otra forma. | Soporte estándar para el Servicio en la Nube de Hyland. |
| Nivel 6 | “Nivel 6” significa Servicios de Soporte Técnico. | Soporte estándar para el Servicio en la Nube de Hyland. |
* No obstante lo anterior, el Mantenimiento y Soporte del software Pacsgear se limita a las siguientes horas:
- Para clientes en Europa: 8:00-5:00 hora de RU (GMT +1)
- Para todos los demás Clientes: 7:00-7:00 hora central (Estados Unidos de América)
Effective May 30th 2023 to May 30th 2023
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SUPPORT PRIORITIZATION ATTACHMENT
Severity Level | Description | Hyland Response |
Level 1 | “Level 1” means any error or issue in the Hyland Cloud Service that causes total or substantial Hyland Cloud Service failure, which means that the Hyland Cloud Service is down and Customer is unable to access the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. To provide a Resolution, Hyland will work up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 2 | “Level 2” means an error or issue in the Hyland Cloud Service that causes substantial Hyland Cloud Service failure which prevents a portion of Customer’s users from accessing the Hyland Cloud Service in any way. | Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. To provide a Resolution, Hyland will work up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 3 | “Level 3” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes an ongoing, system-wide, severe performance degradation. | To provide a Resolution, Hyland will work up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution, provided Customer remains accessible by phone for troubleshooting from the time Hyland receives the notification through Resolution. |
Level 4 | “Level 4” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service prevents a specific feature or functionality from working. | To provide a Resolution, Hyland will use reasonable efforts during regular support hours. |
Level 5 | “Level 5” means that the Hyland Cloud Service is usable except that an error or issue in the Hyland Cloud Service causes a trivial inconvenience and the task can be completed in another way. | Standard Hyland Cloud Service Support. |
Level 6 | “Level 6” means Technical Support Services. | Standard Hyland Cloud Service Support. |
*Notwithstanding the above, Hyland Cloud Service Support for the Pacsgear Software is limited to the following hours:
- for Customers in Europe: 8:00-5:00 UK Time (GMT +1)
- for all other Customers: 7:00-7:00 Central Time
Add-On Subscription Terms
Effective June 2nd 2023
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ADD-ON SUBSCRIPTION TERMS
These Add-On Subscription Terms (these “Add-On Subscription Terms”) form a part of the Order Form, or any other agreement or document, which incorporates these Add-On Subscription Terms by reference (the “Incorporating Document”) entered into between Customer and Hyland, and amend that certain separate contract that governs the licenses to the Software previously procured by the Customer (such as an End User License Agreement (click through or written), Master Software License, Services and Support Agreement, Software License and Services Agreement or other similar agreement addressing Software license terms) (the “Underlying License Agreement”).
1. DEFINED TERMS.
(a) Capitalized terms used in these Add-On Subscription Terms and not defined herein are used herein with the same meanings given such terms under the Incorporating Document and/or Underlying License Agreement.
(b) The term “Effective Date” means the date on which the Incorporating Document is fully executed by Customer and Hyland.
(c) The following additional defined terms are added to the Underlying License Agreement:
2. SUBSCRIPTION SOFTWARE. The parties agree that all Subscription Software will be licensed to Customer on a subscription basis in accordance with the Underlying License Agreement as amended by these Add-On Subscription Terms, and that the terms of these Add-On Subscription Terms shall not apply to Existing Software, which shall continue to be licensed on a perpetual basis. Accordingly, Hyland and Customer agree that, with respect to Subscription Software, as of the Effective Date, the Underlying License Agreement shall be amended as follows:
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
YouTube Integration Schedule
Effective March 2nd 2024
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(a) comply with the YouTube Terms of Service, currently located at https://www.youtube.com/t/terms;
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective October 4th 2023 to March 2nd 2024
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YOUTUBE INTEGRATION SCHEDULE
This YouTube Integration Schedule (this “YouTube Integration Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this YouTube Integration Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this YouTube Integration Schedule, and any other agreement within which the Incorporating Document is incorporated.
All capitalized terms used in this YouTube Integration Schedule shall have the meaning ascribed them in this YouTube Integration Schedule or, if not defined in this YouTube Integration Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this YouTube Integration Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
WHEREAS, Customer desires to purchase (or has purchased) a license to the Software’s Integration for YouTube for Meeting Video (the “YouTube Integration”);
WHEREAS, Customer acknowledges that the YouTube Integration requires Customer to interact with YouTube, and YouTube LLC imposes certain obligations on Hyland with respect to its customers that license the YouTube Integration:
NOW, THEREFORE, Customer and Hyland agree as follows:
1. YOUTUBE REQUIREMENTS. Customer agrees that it when it accesses YouTube through the YouTube Integration, it will:
Customer acknowledges that YouTube LLC may at any time alter the YouTube services, and/or cease to provide Hyland access to its YouTube API services, which would affect Hyland’s ability to support or further develop the YouTube Integration.
Customer agrees to indemnify, defend, and hold Hyland harmless against any claims, costs, losses, damages, liabilities, judgments fees and expenses arising out of Customer’s use of YouTube.
2. CONTROLLING LANGUAGE. Hyland may make other versions of this YouTube Integration Schedule available in other languages at this online location. This English language version of this YouTube Integration Schedule controls over any version of the YouTube Integration Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this YouTube Integration Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the YouTube Integration Schedule that may be made available at this online location in another language.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 3rd 2023 to October 4th 2023
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YOUTUBE INTEGRATION SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this YouTube Integration Schedule (this “YouTube Integration Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this YouTube Integration Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this YouTube Integration Schedule.
All capitalized terms used in this YouTube Integration Schedule shall have the meaning ascribed them in this YouTube Integration Schedule or, if not defined in this YouTube Integration Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this YouTube Integration Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
WHEREAS, Customer desires to purchase (or has purchased) a license to the Software’s Integration for YouTube for Meeting Video (the “YouTube Integration”);
WHEREAS, Customer acknowledges that the YouTube Integration requires Customer to interact with YouTube, and YouTube LLC imposes certain obligations on Hyland with respect to its customers that license the YouTube Integration:
NOW, THEREFORE, Customer and Hyland agree as follows:
1. YOUTUBE REQUIREMENTS. Customer agrees that it when it accesses YouTube through the YouTube Integration, it will:
Customer acknowledges that YouTube LLC may at any time alter the YouTube services, and/or cease to provide Hyland access to its YouTube API services, which would affect Hyland’s ability to support or further develop the YouTube Integration.
Customer agrees to indemnify, defend, and hold Hyland harmless against any claims, costs, losses, damages, liabilities, judgments fees and expenses arising out of Customer’s use of YouTube.
2. TERM; TERMINATION. The initial term of this YouTube Integration Schedule shall be the Term Length identified in the Incorporating Document and such term will continue in effect until the earlier of the termination of (a) the Customer’s license of the YouTube Integration or (b) the Agreement.
3. CONTROLLING LANGUAGE. Hyland may make other versions of this YouTube Integration Schedule available in other languages at this online location. This English language version of this YouTube Integration Schedule controls over any version of the YouTube Integration Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this YouTube Integration Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the YouTube Integration Schedule that may be made available at this online location in another language.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Hyland Content Portal Terms of Use
Effective June 3rd 2023
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HYLAND CONTENT PORTAL TERMS OF USE
These Hyland Content Portal Terms of Use (these “Terms of Use”) govern and control the Customer’s, including its End User’s, access and use of the Hosting Service as described herein.
These Terms of Use forms a part of the Contract Information, and amends that certain separate contract that governs the licenses to the Software previously procured by the Customer (such as an End User License Agreement (click through or written), Master Software License, Services and Support Agreement, Software License and Services Agreement or other similar agreement addressing Software license terms) (the “Underlying Agreement”). The Underlying Agreement, as amended by these Terms of Use, shall be referred to herein as the Agreement.
For purposes of this Agreement, the terms “Customer”, “User” “you” or “your” shall mean the person or entity set forth in the Contract Information.
Customer acknowledges that Jadu, Inc. requires that Customer agree to these Hyland Content Portal Terms of Use prior to Customer’s use of the Hosting Service.
DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in this clause apply in this Agreement and the schedules to it.
Applicable Law: applicable laws, statutes, common law, regulations, ordinances, codes, rules, guidelines, orders, permits, tariffs and approvals of any governmental authority that apply to the parties or the subject matter of this Agreement including any reference to that law as amended, extended, consolidated or re-enacted from time to time.
Business Day: a day (other than a Saturday, Sunday or any nationally recognized public holiday in the Territory referred to). Hours or minutes referred to in this Agreement in relation to Business Days shall be construed as being units of time within a Business Day.
Contract Information: the purchase table schedule included in the Underlying Agreement, an applicable order form, or other similar document for the purchase of Hosting Services and the corresponding invoice you have been provided with for which the terms of this agreement apply.
Charges: the charges payable for any Hosted Software as set out in the Contract Information.
Customer Data: all content, data, files, documents, links works and materials including those held within any system database used by the Service/Software that may be processed by us or Third Party Services in relation to this Agreement.
that is: uploaded to or stored on the Platform by End Users or integrated systems regarding End User data; transmitted by the Platform at your instigation; supplied by the End User to us for uploading to, transmission by, or storage on the Platform; or generated by the Platform as a result of the use of the Service/Software by the End User (but excluding analytics data relating to the use of the Platform and server log files).
Customer Data Incident meaning an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the provisions of clause 4. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland/ Third Party Services systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
End User: You, any of your organization’s users, those users on behalf of whom you may have contracted, and the relevant third party end user using the Service/Software you have procured.
Environment: a single installation of the Service/Software (whether in a cloud based server, single server, virtual server or clustered server infrastructure) and where specifically referred to in the agreement as LIVE Environment (which is intended to provide content and software functionality to end users) or UAT Environment (which is for the purpose of conducting user acceptance testing by you before changes are made to a LIVE Environment).
Force Majeure Event: an event, or a series of related events, that is outside the reasonable control of the party affected including failures of the Internet or any public telecommunications network, cyber or hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters including natural disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars.
Hosting Service or Hosting Services: the hosting service of the Platform to be provided by Hyland, or through Third Party Services, set out in the Contract Information including, where indicated, web performance, security or intrusion detection services to you as part of the Hosted Software. The Hosting Service also includes the hosting by Hyland or Third Party Services of the Hosted Software together with the provision of such server maintenance services, infrastructure, hardware and bandwidth as are necessary to provide such Third Party Services in relation to the Service/Software. Schedule 2 lists the subcontractors and data processors you approve for the delivery of the services to be delivered by Hyland under this Agreement.
For the avoidance of doubt, the Hosting Service does not include the Hyland Cloud Service or any services or software offered by Hyland that are not the Hyland Content Portal.
Hosted Software: the Hyland Content Portal Service/Software including all related Software Products indicated as hosted in the Contract Information.
For the avoidance of doubt, the Hosting Software does not include any services or software offered by Hyland that are not the Hyland Content Portal.
Hosting Support Service: the support service for hosting related issues to be provided by Hyland as part of the Hosting Service.
Inappropriate Content: any material which is unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or the terms of this Agreement.
Intellectual Property Rights: rights in patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, moral rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Software Products: Service/Software Enterprise products making up the Hyland Content Portal (CP).
For the avoidance of doubt, the Software Products does not include any services or software offered by Hyland that are not the Hyland Content Portal.
Platform: the platform managed by Hyland and used by Hyland to provide the Service/Software, including the application and database software for the Service/Software, the system and server software used to provide the Service/Software, and the computer hardware on which that application, database, system and server software is installed and all networking, storage, and related technology required to run the Service/Software.
Professional Services: professional services provided by Hyland or a Third Party Services provision of professional services at Hyland’s request.
Release: an update of the Service/Software incorporating ‘patches’ where applicable which corrects faults, adds functionality (and may include new tools and resources) or otherwise amends or updates the Service/Software.
Service/Software: the service and any software (which includes Software Products) and associated media and any Documentation Hyland provides to you for the Service/Software or Release in either printed text or digital or machine-readable form, including any technical documentation, program specification and operations manual.
Where reference is made to a ‘product’ of the Service/ Software it refers to individual Service/ Software products rather than the totality of all Service/Software. The Hosting Service and Hosting Support Service in relation to the Service/Software does not include any templates, themes, forms, case types, portals or other presentation layer or content items designed to operate in conjunction with or to interface with the Service/Software and are not part of the Service/Software in this regard.
For the avoidance of doubt, the Service/Software does not include any services or software offered by Hyland that are not the Hyland Content Portal.
Support Portal: the on-line support and incident-reporting help desk system provided by Hyland as part of the Hosting Support Service.
Standard Support Hours: 8.00 am to 6.00 pm on Business Days in England in relation to the provision of the Hosting Support Service.
Territory: England, U.S or Canada according to the location of the respective party’s principal place of business.
Third Party Services: any part of the Hosting Service or third party integrations provided by any third party, other than Jadu, Inc. in accordance with the terms of this Agreement.
1. DURATION.
3. HOSTING SERVICE.
(i) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Service/Software or from any error or defect in any configuration of any component of the Service/Software or Hosting Service, which activities in any such case were undertaken by any party other than Hyland or a Third Party Service supplier;
(ii) in connection with any error or defect or problem in any other component of the Service/Software or Hosting Service if Hyland has previously made available corrections for such error or defect which you fail to implement;
(iii) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Service/Software or the Hosting Service;
(iv) if any party other than Hyland or Third Party Services supplier, has provided any services in the nature of the Hosting Support Service to you with respect to the Service/Software or Hosting Service; or
(v) in connection with any questions related to the operation or use of the Service/Software application programming interfaces (APIs). Support relating to the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Hyland proposal which outlines Professional Services for such support activities.
3.3 Both parties shall take appropriate technical and organizational measures against unauthorized or unlawful processing of Customer Data or its accidental loss, destruction or damage. This may include pseudonymizing and encrypting Customer Data. Where requested by you or as otherwise authorized under this Agreement, the technical processing and transmission of the Service/Software in relation to the Hosting Service including your content, may be transferred unencrypted and involve:
(a) transmissions over various networks and in this regard, Hyland are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and you acknowledge that the Service/Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
(b) changes to conform and adapt to technical requirements of connecting networks or mobile devices;
(c) temporary return of encrypted data to an unencrypted format for the effective operation of the intrusion detection system forming part of the Hosting Services; and
(d) in the event of a support or security issue with the Hosting Services access to data to perform required investigation and resolution of any such issue.
5. LIMITATION OF LIABILITY AND INDEMNITIES.
5.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HYLAND AND ITS THIRD PARTY SERVICES SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SERVICE (INCLUDING IN RELATION TO THE SERVICE/SOFTWARE, PLATFORM, HOSTED SOFTWARE, HOSTING SERVICE, HOSTING SUPPORT SERVICE, PROFESSIONAL SERVICES AND THIRD PARTY SERVICES) OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY SERVICES PROPOSAL. HYLAND AND ITS THIRD PARTY SERVICES SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS THIRD PARTY SERVICES SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HOSTING SERVICE, PROFESSIONAL SERVICES, SERVICE/SOFTWARE PROVIDED WILL SATISFY YOUR REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE/SOFTWARE, HOSTING SERVICE, ADD-ON SERVICES, OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
5.2 YOU SPECIFICALLY ASSUME RESPONSIBILITY FOR THE SELECTION OF THE SERVICE/SOFTWARE, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE YOUR BUSINESS OBJECTIVES.
5.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SERVICE/SOFTWARE, OR HOSTING SERVICES, IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SERVICE/SOFTWARE, HOSTING SERVICE, “AS IS.”
5.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in this Agreement is authorized unless it is set forth in writing, references this Agreement, and is signed on behalf of Hyland by a corporate officer.
5.5 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS THIRD PARTY SERVICES SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
5.6 HYLAND’S (INCLUDING ITS AFFILIATES AND THIRD PARTY SERVICES SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY YOU (LESS ANY REFUNDS OR CREDITS) FOR THE USE OF THE PRODUCTS OR PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO YOU FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR THIRD PARTY SERVICES SUPPLIERS WILL BE LIABLE FOR DIRECT DAMAGES.
5.7 THE LIMITATIONS IN SECTIONS 5.5 AND 5.6 SHALL NOT APPLY TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW.
5.8 [RESERVED].
5.9 You acknowledge that Hyland uses Third Party Services to provide the Hosting Service of the Platform and the only representation as to service levels and uptime are in accordance with the service levels set out in schedule 1. Without prejudice to any other provision of this Agreement, Hyland’s total liability to you in respect of such services levels and uptime shall in no circumstances exceed a sum equivalent to the service credits set out in schedule 1.
5.10 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT THE FOLLOWING SHALL APPLY: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS THIRD PARTY SERVICES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS AGREEMENT), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, ALL FEES AND CHARGES ACTUALLY PAID BY YOU TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY TWO (2).
6. TERMINATION.
7. NON-SOLICITATION.
8. GENERAL.
Schedule 1
Details of Hosting Support Service, service levels and service credits
Hosting Support Service for Service/Software:
Due to the varying types of Hosting Support Service issues and the dependency on both your and Hyland’s Third Party Services (hosting provider’s) interaction, Hyland does not offer a “resolution target” for Hosting Support Service issues.
Response and resolution times depend on the nature and severity of the Hosting Support Service issues reported. The following response and approximate resolution times represent ‘worst case scenarios’ for the most complex Hosting Support Service issues rather than being targets for all Hosting Support Service issues and Hyland would expect to be well within these times for most Hosting Support Service issues.
The date and time at which a Hosting Support Service issue is raised is considered to be the date and time at which it is entered into the Support Portal. Any Hosting Support Service issues raised by your staff or agents via telephone call will be logged on their behalf within the Support Portal. Where Hosting Support Service issues are raised by telephone call then a first response target will be deemed to have been met by the interaction within said call. For the purposes of the audit trail and any subsequent reports the times will be taken from the date and time the Hosting Support Service issues were logged in the Support Portal.
Hyland will respond to Hosting Support Service tickets within Standard Support Hours within the following response times:
Priority of Hosting Support Service Issue: | First Response (as set out above) within: | Feedback frequency: | Approximate resolution for Hosting Support Service issue, Platform or Release update, temporary fix or workaround and where applicable, available for you to test: |
Priority 1 - Customers WITH a DR Environment | 30 minutes * for Hyland Software Products. | Every hour * | 1 hour *(or sooner for temporary fix) to provide a fix or to switch to DR site (subject to terms and conditions of DR service) for Hyland Software Products |
* Business Day, hour(s) or other specified unit of time.
Service/Software Uptime SLA - Service Credits for Hyland Software Products:
Service Hours | Measurement Period | Uptime | Service Credit (**) |
24 x 7 | Annually | Between 99.9% and 99.00% | 3% of Hyland’s annual Charge to you for the applicable Hosting Service. |
24 x 7 | Annually | Between 98.99% and 97.50% | 6% of Hyland’s annual Charge to you for the applicable Hosting Service. |
24 x 7 | Annually | Below 97.49% | 10% of Hyland’s annual Charge to you for the applicable Hosting Service. |
(**) Service Credits shall be exclusive the financial remedy for failure to meet the KPIs in the table above and will take the form of a credit note to be offset against future Charges. Service Credits shall only be paid as a refund if the agreement is terminated or expires and the Supported Service is not renewed. The measurement of determining Service Credits shall be based on a calendar year and accordingly shall commence from your first full calendar month using the Service/Software.
Service credits are only payable on the applicable Uptime banding and not applied cumulatively. Scheduled Downtime and emergency maintenance as referred to in this Agreement is excluded from the calculation of Uptime.
“Uptime”
Uptime is defined as the percentage availability of the Hosting Service over the current calendar year excluding Scheduled Downtime.
“Scheduled Downtime”
Scheduled Downtime is planned routine maintenance for the deployment of Releases of the Service/Software to the Hosting Service or regular maintenance activities such as scheduled Hosting Service patching.
Hyland Disaster Recovery Environment (‘DR Environment’) provision operates as follows:
Backups are taken every 24 hours (overnight) In relation to the LIVE Environment of your LAMP based Hyland Software Products and used to refresh your DR Environment. The DR Environment for your Hyland Software Products is available during a LIVE Environment disaster event subject to DNS changes initiated and managed by you. The declaration of the disaster and the initiating of a switch to the DR Environment is subject to agreement between you and Hyland and will take place at an agreed time.
Any third-party integrations (including those in relation to Third Party Services) requiring special connectivity arrangements (VPN, IP whitelisting, etc.) will not work unless previously configured on both sides by the initiator (DR Environment) and the receiver (third party integration end-point) following prior cooperation between the parties of this Agreement for such arrangements and any such services shall be delivered (by Hyland or by its subcontractors) at Hyland’s Professional Services rates.
During usage of the DR Environment, content changes can be made to the DR Environment by you but those changes will not be replicated back to the LIVE Environment when it is restored unless such a service has been agreed between the parties as an additional Professional Service.
Schedule 2
Subcontractors
The Hosting Service shall include the hosting by Hyland or Hyland’s Third Party Services subcontractors of the Hosted Software together with the provision of such server maintenance services, infrastructure, hardware and bandwidth as are necessary to provide such Third Party Services in relation to the Service/Software. The following are a list of approved subcontractors and data processors Hyland may use. Hyland will notify you of any other alternative or additional third parties in writing:
Company Registration Number | Full name and trading name where applicable | Registered Address | Where data is stored | Purpose (in relation to products and services taken and paid for) |
880665542 | Amazon Web Services Inc (“AWS”) | 410 Terry Avenue North Seattle, WA 98109 United States | US | (1) Hosting for Service/Software and/or (2) Disaster Recovery site hosting for Hyland Software Products |
4890547 | Jadu Inc. | Jadu, Inc. 12022 Blue Valley Parkway, Overland Park, KS 66213, United States | Jadu Support may log in from the UK. Data remains stored in US | Support of the Service/Software |
Please note that if the Contract Information indicates that this is a renewal of the Hosting Service and Hyland has previously provided such services using other third parties, those third parties will also remain as approved subcontractors.
Schedule 3
Customer Data processed in relation to the Agreement:
Description | Details |
Subject matter of the processing | Example: Hosting Service and Hosting Support Service for (i) the Hyland Software Product Content Portal (CP); and (ii) your website(s) including subscription preferences for targeted email alerts. |
Duration of the processing | Example: Commencement Date to any such time as the agreement is terminated. |
Nature and purpose of the processing | Example: Provision of Hosting Service and Hosting Support Service of the products /services listed in “Subject matter of the processing” above. The nature of the processing generally relates to data hosting, system maintenance and upgrades but includes any operation such as, recording, storing, adapting, altering, retrieving, using, disclosing, disseminating, restricting, erasing, destroying or otherwise processing data held within the ICT systems. In terms of any Customer Data integrated with or through Third Party Services applications, you acknowledge full responsibility in relations to the lawful transfer, use, handling and storage of the same. Where Hyland transfers Customer Data on your behalf in pursuance of this Agreement, you have consented to the same as indicated in the agreement. |
Type of Customer Data | Example: Examples include but are not limited to; name, address, email address, date of birth, contact details. |
Categories of Data Subject | Example: Examples include but are not limited to; staff (including volunteers, agents, and temporary workers), customers/ clients, members of the public, website users. |
Plan for return and destruction of the data once the processing is complete unless requirement under union or member state law to preserve that type of data | Example: At the end of the agreement instructions shall be issued defining the requirement to return and/or destruct data. |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Subscription Terms - Full Conversion to Subscription Licenses
Effective June 3rd 2023
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SUBSCRIPTION TERMS
(FULL CONVERSION TO SUBSCRIPTION LICENSES)
These Subscription Terms (these “Subscription Terms”) form a part of the Order Form, or any other agreement or document, which incorporates these Subscription Terms by reference (the “Incorporating Document”) entered into between Hyland and Customer, and amend that certain separate contract that governs the licenses to the Software previously procured by Customer from Hyland (such as an End User License Agreement (click through or written) and Master Software License, Services and Support Agreement, Software License and Services Agreement or other similar agreement addressing Software license terms) (the “Underlying License Agreement”).
1. DEFINED TERMS.
“Subscription Fees” means periodic fees for the licensing of Software licensed under this Amendment and Maintenance and Support for such Software, and payable by Customer to Hyland or to Hyland’s authorized channel partner, if applicable.
2. CONVERSION FROM PERPETUAL LICENSES TO SUBSCRIPTION LICENSES. The parties agree that all Software licensed to Customer prior to the Effective Date and thereafter will be on a subscription basis in accordance with the terms of the Agreement. Accordingly, Hyland and Customer agree that, as of the Effective Date, the Agreement shall be amended as follows:
i. In General. In lieu of Customer’s obligation to pay Software license fees and Maintenance and Support fees under the Underlying License Agreement, Customer shall pay Subscription Fees to Hyland for the Software licensed under the Agreement in such amounts as are invoiced by Hyland. Subject to Section 2(b)(ii) and (iii), Subscription Fees for the Initial Term are set forth in the Incorporating Document.
ii. Subscription Fees Payable to Hyland. If Customer is paying Subscription Fees to Hyland, Customer will be invoiced upon the Effective Date for the first year of the Initial Term. Such invoice shall be due and payable in accordance with the Underlying License Agreement, and if no payment terms are set forth in the Underlying License Agreement, such invoice shall be due and payable by Customer net thirty (30) days from the date of the applicable invoice. For any subsequent years, Customer will be invoiced for Subscription Fees prior to the beginning of such year, and such invoices shall be due and payable by Customer on or before the beginning of such year. In the event Customer licenses additional Software modules under the Agreement, Customer will be invoiced for Subscription Fees for such additional Software modules on a pro rata basis upon acceptance of the purchase order for such additional Software modules. Such invoice shall be due and payable by Customer in accordance with the Underlying License Agreement, and if no payment terms are set forth in the Underlying License Agreement, such invoice shall be due and payable by Customer net thirty (30) days from the date of the applicable invoice. Thereafter, Subscription Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software. Except as otherwise provided in these Subscription Terms, in relation to Software, any reference in the Underlying License Agreement to Software license fees and Maintenance and Support fees (or maintenance fees) shall mean Subscription Fees.
iii. Subscription Fees Payable to a Hyland Authorized Channel Partner. If Customer is receiving maintenance and support from a Hyland authorized channel partner, and paying Subscription Fees to such Hyland authorized channel partner, Subscription Fees will be invoiced and due and payable in accordance with Customer’s agreement with such Hyland authorized channel partner.
3. CONTROLLING LANGUAGE. Hyland may make other versions of these Subscription Terms available in other languages at this online location. This English language version of these Subscription Terms controls over any version of the Subscription Terms made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Subscription Terms are not made available at this online location in the Other Language, this English language version controls over any other version of Subscription Terms that may be made available at this online location in another language.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Agenda Media Schedule
Effective October 4th 2023
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This Agenda Media Schedule (this “Agenda Media Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this Agenda Media Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Agenda Media Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Agenda Media Schedule shall have the meaning ascribed them in this Agenda Media Schedule or, if not defined in this Agenda Media Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Agenda Media Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement.
“Agenda Media Service” means software as a service that gives Customer the ability to provide live and video-on-demand streaming of Customer Data (as defined below) to Agenda Media Users through Customer’s OnBase Agenda module.
“Agenda Media Service Fee” means the annual amounts invoiced by Hyland to Customer and payable by Customer to Hyland for use of Agenda Media Service.
“Agenda Media Service Term” means the Initial Agenda Media Service Term and all Renewal Agenda Media Service Terms, each as defined in Section 1(e) below.
“Agenda Media User” means any person who views or otherwise accesses Customer Data through Customer’s licensed instance of the OnBase Agenda module.
“Consumption Fees” means the amounts payable by Customer for the Customer Data Streaming Usage in excess of the data streaming limitation for the Agenda Media Service for which the Customer has paid.
“Customer Data” means Customer’s media files stored by Hyland within Hyland’s data centers for the provision of the Agenda Media Service.
“Customer Data Streaming Usage” means the amount of terabytes consumed by Customer through the streaming of Customer Data in the Agenda Media Service.
“Hosted Media Software” means the software used within the hosted environment and accessed by Customer and Agenda Media Users when using the Agenda Media Service. Hosted Media Software does not include the OnBase Agenda module, which is licensed to Customer as Software under a Software License Schedule or separate license agreement, or made available to Customer as part of a Hyland hosted solution.
“Permitted Uses” means use of the Agenda Media Service by Customer to store and view Customer Data, and use by Agenda Media Users to view such Customer Data, each through Customer’s licensed instance of the OnBase Agenda module and in accordance with the terms of this Agenda Media Schedule.
1. AGENDA MEDIA SERVICE. The Agenda Media Service will be provided by Hyland during the Agenda Media Service Term, subject to the following terms:
(i) Agenda Media Service Fees: During the Agenda Media Service Term, Hyland will invoice the Agenda Media Service Fee annually, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Hyland will invoice Customer for the Agenda Media Services Fees for the Initial Agenda Media Service Term on or after the Effective Date, and such invoice shall be due and payable in accordance with the General Terms Schedule. For any subsequent Agenda Media Service Renewal Term, Hyland will invoice Customer for the Agenda Media Services Fees at least thirty (30) days prior to the beginning of such Agenda Media Service Renewal Term, and such invoice shall be due and payable by Customer to Hyland before the beginning of such Agenda Media Service Renewal Term.
(ii) Consumption Fees: At least ninety (90) days prior to any Agenda Media Service Renewal Term, Hyland will obtain a consumption report to determine the average monthly Customer Data Streaming Usage (the “Annual Consumption Report”). If, based on such Annual Consumption Report, Hyland determines that Customer Data Streaming Usage in the Agenda Media Service exceeds Customer’s then-current Customer Data Streaming Usage allotted based upon fees paid by Customer, Hyland will increase Customer’s streaming data allocation in order to align with the Annual Consumption Report and increase fees for the following Agenda Media Service Renewal Term. Hyland will invoice Customer for any such fees, and such invoice shall be due and payable in accordance with the General Terms Schedule.
2. MEDIA PLAYER. Customer acknowledges that the Agenda Media Service utilizes a media player licensed from a third party (currently, JW Player) (the “Third Party Media Player”) that is included in the OnBase Agenda module, which has been or is being separately licensed or made available from Hyland to Customer. Notwithstanding the terms of any license to the OnBase Agenda module, the following terms nonetheless apply to the Third Party Media Player as a third party component to such software module:
3. TERMINATION.
3.1 In addition to the termination provisions set forth in the Termination Section of the General Terms Schedule and the Agenda Media Service Term Section of this Agenda Media Schedule, either party may terminate this Schedule for any reason, upon not less than thirty (30) days advance written notice to Hyland to such effect.
3.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of this Schedule will be in violation of any law or regulation implemented or modified after the commencement of Agenda Media Service provided pursuant to this Schedule, Customer or Hyland, as the case may be, may terminate this Schedule upon thirty (30) days written notice to the other party.
3.2 Additional Effects or Consequences of Termination. In addition to the Certain Effects or Consequences of Termination; Survival of Certain Provisions Section of the General Terms Schedule, immediately upon any termination or expiration of this Schedule, Customer shall cease any and all uses of or access to the Agenda Media Service.
4. CONTROLLING LANGUAGE. Hyland may make other versions of this Agenda Media Schedule available in other languages at this online location. This English language version of this Agenda Media Schedule controls over any version of the Agenda Media Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Agenda Media Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Agenda Media Schedule that may be made available at this online location in another language.
EXHIBIT A
TO AGENDA MEDIA SERVICE SCHEDULE
ACCEPTABLE USE POLICY FOR THE AGENDA MEDIA SERVICE
Customer’s use of the Agenda Media Service constitutes Customer’s acceptance of the terms and conditions of this AUP in effect at the time of such use. Hyland reserves the right to modify this policy at any time effective immediately upon Hyland’s posting of the modification or revised AUP on Hyland’s website: https://www.hyland.com/community.
(i) Infringing or misappropriating intellectual property rights, including copyrights, trademarks, service marks, software, patents and trade secrets;
(ii) Engaging in the promotion, sale, production, fulfillment or delivery of illegal drugs, illegal gambling, obscene materials or other products and services prohibited by law. Similarly, soliciting illegal activities is prohibited even if such activities are not actually performed;
(iii) Displaying, transmitting, storing or making available child pornography materials;
(iv) Transmitting, distributing or storing any material that is unlawful, including encryption software in violation of U.S. export control laws, or that presents a material risk of civil liability to Hyland;
(v) Displaying, transmitting, storing or publishing information that constitutes libel, slander, defamation, harassment, obscenity, or otherwise violates the privacy or personal rights of any person;
(vi) Displaying or transmitting obscene, threatening, abusive or harassing messages; or
(vii) Promoting, offering or implementing fraudulent financial schemes including pyramids, illegitimate funds transfers and charges to credit cards.
C. Customer shall not use the Agenda Media Service to engage in any of the following:
(i) Interfering with, gaining unauthorized access to or otherwise violating the security of Hyland’s or another party’s server, network, personal computer, network access or control devices, software or data, or other system, or to attempt to do any of the foregoing, including, but not limited to, use in the development, distribution or execution of Internet viruses, worms, denial of service attacks, network flooding or other malicious activities intended to disrupt computer services or destroy data;
(ii) Interfering with Hyland’s network or the use and enjoyment of the Agenda Media Service received by other authorized Customers;
(iii) Promoting or distributing software, services or address lists that have the purpose of facilitating spam;
(iv) Providing false or misleading information in message headers or other content, using non-existent domain names or deceptive addressing, or hiding or obscuring information identifying a message’s point of origin or transmission path;
(v) Violating personal privacy or publicity rights;
(vi) Sending and collecting responses to spam, unsolicited electronic messages or chain mail; and
(vii) Engaging in any activities that Hyland believes, in its sole discretion, might be harmful to Hyland’s operations, public image or reputation.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 3rd 2023 to October 4th 2023
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As of the Effective Date of the Incorporating Document (as defined below), this Agenda Media Schedule (this “Agenda Media Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Agenda Media Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Agenda Media Schedule.
DEFINED TERMS
All capitalized terms used in this Agenda Media Schedule shall have the meaning ascribed them in this Agenda Media Schedule or, if not defined in this Agenda Media Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Agenda Media Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Agenda Media Service” means software as a service that gives Customer the ability to provide live and video-on-demand streaming of Customer Data (as defined below) to Agenda Media Users through Customer’s OnBase Agenda module.
“Agenda Media Service Fee” means the annual amounts invoiced by Hyland to Customer and payable by Customer to Hyland for use of Agenda Media Service.
“Agenda Media Service Term” means the Initial Agenda Media Service Term and all Renewal Agenda Media Service Terms, each as defined in Section 1(e) below.
“Agenda Media User” means any person who views or otherwise accesses Customer Data through Customer’s licensed instance of the OnBase Agenda module.
“Consumption Fees” means the amounts payable by Customer for the Customer Data Streaming Usage in excess of the data streaming limitation for the Agenda Media Service for which the Customer has paid.
“Customer Data” means Customer’s media files stored by Hyland within Hyland’s data centers for the provision of the Agenda Media Service.
“Customer Data Streaming Usage” means the amount of terabytes consumed by Customer through the streaming of Customer Data in the Agenda Media Service.
“Hosted Media Software” means the software used within the hosted environment and accessed by Customer and Agenda Media Users when using the Agenda Media Service. Hosted Media Software does not include the OnBase Agenda module, which is licensed to Customer as Software under a Software License Schedule or separate license agreement, or made available to Customer as part of a Hyland hosted solution.
“Permitted Uses” means use of the Agenda Media Service by Customer to store and view Customer Data, and use by Agenda Media Users to view such Customer Data, each through Customer’s licensed instance of the OnBase Agenda module and in accordance with the terms of this Agenda Media Schedule.
1. AGENDA MEDIA SERVICE. The Agenda Media Service will be provided by Hyland during the Agenda Media Service Term, subject to the following terms:
(i) Agenda Media Service Fees: During the Agenda Media Service Term, Hyland will invoice the Agenda Media Service Fee annually, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule. Hyland will invoice Customer for the Agenda Media Services Fees for the Initial Agenda Media Service Term on or after the Effective Date, and such invoice shall be due and payable in accordance with the General Terms Schedule. For any subsequent Agenda Media Service Renewal Term, Hyland will invoice Customer for the Agenda Media Services Fees at least thirty (30) days prior to the beginning of such Agenda Media Service Renewal Term, and such invoice shall be due and payable by Customer to Hyland before the beginning of such Agenda Media Service Renewal Term.
(ii) Consumption Fees: At least ninety (90) days prior to any Agenda Media Service Renewal Term, Hyland will obtain a consumption report to determine the average monthly Customer Data Streaming Usage (the “Annual Consumption Report”). If, based on such Annual Consumption Report, Hyland determines that Customer Data Streaming Usage in the Agenda Media Service exceeds Customer’s then-current Customer Data Streaming Usage allotted based upon fees paid by Customer, Hyland will increase Customer’s streaming data allocation in order to align with the Annual Consumption Report and increase fees for the following Agenda Media Service Renewal Term. Hyland will invoice Customer for any such fees, and such invoice shall be due and payable in accordance with the General Terms Schedule.
2. MEDIA PLAYER. Customer acknowledges that the Agenda Media Service utilizes a media player licensed from a third party (currently, JW Player) (the “Third Party Media Player”) that is included in the OnBase Agenda module, which has been or is being separately licensed or made available from Hyland to Customer. Notwithstanding the terms of any license to the OnBase Agenda module, the following terms nonetheless apply to the Third Party Media Player as a third party component to such software module:
3. TERMINATION.
3.1 In addition to the termination provisions set forth in the Termination Section of the General Terms Schedule and the Agenda Media Service Term Section of this Agenda Media Schedule, either party may terminate this Schedule for any reason, upon not less than thirty (30) days advance written notice to Hyland to such effect.
3.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of this Schedule will be in violation of any law or regulation implemented or modified after the commencement of Agenda Media Service provided pursuant to this Schedule, Customer or Hyland, as the case may be, may terminate this Schedule upon thirty (30) days written notice to the other party.
3.2 Additional Effects or Consequences of Termination. In addition to the Certain Effects or Consequences of Termination; Survival of Certain Provisions Section of the General Terms Schedule, immediately upon any termination or expiration of this Schedule, Customer shall cease any and all uses of or access to the Agenda Media Service.
4. CONTROLLING LANGUAGE. Hyland may make other versions of this Agenda Media Schedule available in other languages at this online location. This English language version of this Agenda Media Schedule controls over any version of the Agenda Media Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Agenda Media Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Agenda Media Schedule that may be made available at this online location in another language.
EXHIBIT A
TO AGENDA MEDIA SERVICE SCHEDULE
ACCEPTABLE USE POLICY FOR THE AGENDA MEDIA SERVICE
Customer’s use of the Agenda Media Service constitutes Customer’s acceptance of the terms and conditions of this AUP in effect at the time of such use. Hyland reserves the right to modify this policy at any time effective immediately upon Hyland’s posting of the modification or revised AUP on Hyland’s website: https://www.hyland.com/community.
(i) Infringing or misappropriating intellectual property rights, including copyrights, trademarks, service marks, software, patents and trade secrets;
(ii) Engaging in the promotion, sale, production, fulfillment or delivery of illegal drugs, illegal gambling, obscene materials or other products and services prohibited by law. Similarly, soliciting illegal activities is prohibited even if such activities are not actually performed;
(iii) Displaying, transmitting, storing or making available child pornography materials;
(iv) Transmitting, distributing or storing any material that is unlawful, including encryption software in violation of U.S. export control laws, or that presents a material risk of civil liability to Hyland;
(v) Displaying, transmitting, storing or publishing information that constitutes libel, slander, defamation, harassment, obscenity, or otherwise violates the privacy or personal rights of any person;
(vi) Displaying or transmitting obscene, threatening, abusive or harassing messages; or
(vii) Promoting, offering or implementing fraudulent financial schemes including pyramids, illegitimate funds transfers and charges to credit cards.
C. Customer shall not use the Agenda Media Service to engage in any of the following:
(i) Interfering with, gaining unauthorized access to or otherwise violating the security of Hyland’s or another party’s server, network, personal computer, network access or control devices, software or data, or other system, or to attempt to do any of the foregoing, including, but not limited to, use in the development, distribution or execution of Internet viruses, worms, denial of service attacks, network flooding or other malicious activities intended to disrupt computer services or destroy data;
(ii) Interfering with Hyland’s network or the use and enjoyment of the Agenda Media Service received by other authorized Customers;
(iii) Promoting or distributing software, services or address lists that have the purpose of facilitating spam;
(iv) Providing false or misleading information in message headers or other content, using non-existent domain names or deceptive addressing, or hiding or obscuring information identifying a message’s point of origin or transmission path;
(v) Violating personal privacy or publicity rights;
(vi) Sending and collecting responses to spam, unsolicited electronic messages or chain mail; and
(vii) Engaging in any activities that Hyland believes, in its sole discretion, might be harmful to Hyland’s operations, public image or reputation.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Pacsgear Equipment Schedule
Effective October 4th 2023
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PACSGEAR EQUIPMENT SCHEDULE
This Pacsgear Equipment Schedule (this “Pacsgear Equipment Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this Pacsgear Equipment Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Pacsgear Equipment Schedule, and any other agreement within which the Incorporating Document is incorporated.
DEFINED TERMS
All capitalized terms used in this Pacsgear Equipment Schedule shall have the meaning ascribed them in this Pacsgear Equipment Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Pacsgear Equipment Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Business Day” means, for customers in Europe, 8:00am through 5:00pm UK Time (GMT +1); and for all other customers, 7:00-7:00 Central Time (CT), Monday through Friday excluding certain locally--observed holidays.
“Delivery” or “Delivered” means, with respect to Equipment, the Equipment is shipped by Hyland in accordance with Section 1.3 of this Schedule.
“Device Software” means software for use on Equipment purchased from Hyland under this Pacsgear Equipment Schedule. Except as provided in this Pacsgear Equipment Schedule, Software under the Agreement shall include Device Software.
“Equipment” means equipment or hardware purchased under the Agreement.
“Equipment Support” means support for Equipment and Device Software as described in this Pacsgear Equipment Schedule.
“Maintenance and Support” means, in the case of Equipment and Device Software, Equipment Support.
“Replacement Equipment” shall mean used Equipment that Hyland has restored or refurbished to satisfactory operating condition. Hyland uses new and reconditioned parts made by various manufacturers in performing repairs and providing replacement parts.
“Technical Contact” means a primary contact person who has read, comprehends, and follows the operating instructions provided by the manufacturer of the Device Software and/or Equipment prior to requesting such support, and who has full access and authority if Hyland requires assistance to research or duplicate a reported issue. The Technical Contact may be changed at any time upon notice to Hyland.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 3rd 2023 to October 4th 2023
DownloadTable of Contents
PACSGEAR EQUIPMENT SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Pacsgear Equipment Schedule (this “Pacsgear Equipment Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Pacsgear Equipment Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Pacsgear Equipment Schedule.
DEFINED TERMS
All capitalized terms used in this Pacsgear Equipment Schedule shall have the meaning ascribed them in this Pacsgear Equipment Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Pacsgear Equipment Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Business Day” means, for customers in Europe, 8:00am through 5:00pm UK Time (GMT +1); and for all other customers, 7:00-7:00 Central Time (CT), Monday through Friday excluding certain locally--observed holidays.
“Delivery” or “Delivered” means, with respect to Equipment, the Equipment is shipped by Hyland in accordance with Section 1.3 of this Schedule.
“Device Software” means software for use on Equipment purchased from Hyland under this Pacsgear Equipment Schedule. Except as provided in this Pacsgear Equipment Schedule, Software under this Agreement shall include Device Software.
“Equipment” means equipment or hardware purchased under this Agreement.
“Equipment Support” means support for Equipment and Device Software as described in this Pacsgear Equipment Schedule.
“Maintenance and Support” means, in the case of Equipment and Device Software, Equipment Support.
“Replacement Equipment” shall mean used Equipment that Hyland has restored or refurbished to satisfactory operating condition. Hyland uses new and reconditioned parts made by various manufacturers in performing repairs and providing replacement parts.
“Technical Contact” means a primary contact person who has read, comprehends, and follows the operating instructions provided by the manufacturer of the Device Software and/or Equipment prior to requesting such support, and who has full access and authority if Hyland requires assistance to research or duplicate a reported issue. The Technical Contact may be changed at any time upon notice to Hyland.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Enterprise License Schedule
Effective March 7th 2024
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DEFINED TERMS
“Enterprise License Tier Value” shall mean the value identified as such on the Order Form.
(a) if the Enterprise Metric Value is Worker Population, Customer will report to Hyland in writing its Enterprise Metric Value (the “Customer Determination”); or
ASSET SIZE ATTACHMENT
ENTPRISE LICENSE TIERS
Minimum Assets Millions | Maximum Asset Millions |
50 | 100 |
100 | 150 |
150 | 200 |
200 | 300 |
300 | 400 |
400 | 500 |
500 | 750 |
750 | 1,000 |
1,000 | 1,250 |
1,250 | 1,500 |
1,500 | 1,750 |
1,750 | 2,000 |
2,000 | 2,999 |
3,000 | 3,999 |
4,000 | 4,999 |
5,000 | 5,999 |
6,000 | 7,999 |
8,000 | 9,999 |
10,000 | 11,999 |
12,000 | 13,999 |
14,000 | 15,999 |
16,000 | 17,999 |
18,000 | 19,999 |
20,000 | 21,999 |
22,000 | 23,999 |
24,000 | 25,999 |
26,000 | 27,999 |
28,000 | 29,999 |
30,000 | 31,999 |
32,000 | 33,999 |
34,000 | 35,999 |
36,000 | 37,999 |
38,000 | 39,999 |
40,000 | 41,999 |
42,000 | 43,999 |
44,000 | 45,999 |
46,000 | 47,999 |
48,000 | 49,999 |
50,000 | 51,999 |
52,000 | 53,999 |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective October 4th 2023 to March 7th 2024
DownloadTable of Contents
ENTERPRISE LICENSE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Enterprise License Schedule (this “Enterprise License Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Enterprise License Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Enterprise License Schedule.
DEFINED TERMS
All capitalized terms used in this Enterprise License Schedule shall have the meaning ascribed them in this Enterprise License Schedule or, if not defined in this Enterprise License Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Enterprise License Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Enterprise Metric Value” means, depending on the Enterprise Metric Value identified on the Order Form, one of the following:
(a) “Asset Size” means Customer’s then current asset size as reported on the website of the Federal Deposit Insurance Corporation or any successor agency thereto (“FDIC”) (currently, https://research.fdic.gov/bankfind/index.html).
(b) “Employee Population” means Customer’s full time employee population (as defined by the National Credit Union Administration or any successor agency thereto (“NCUA”)) as most recently reported by the NCUA.
(c) “Student Population” means Customer’s total student enrollment (full time), including undergraduate and graduate students, as most-recently reported by the Integrated Postsecondary Educational Data System or any successor system thereto (“IPEDS”).
(d) “Worker Population” means: (1) all employees who received W-2s (or a successor form) issued by or on behalf of the Customer with respect to the preceding calendar year; and (2) all non-US employees of Customer, as of the first day of the month prior to the Initial Audit Date or Audit Date, as applicable.
“Initial Enterprise Metric Value” shall mean the value identified as such on the Order Form.
“Initial Audit Date” shall mean the date identified as such on the Order Form.
“Enterprise License Tier Value” shall mean the value identified as such on the Order Form.
1. ADDITIONAL FEES FOR THE ENTERPRISE LICENSE. The initial fees for the Enterprise License as identified on the Order Form (the “Enterprise License”) are based on the Initial Enterprise Metric Value. The parties agree that subsequent determinations of the Enterprise Metric Value will be made consistent with the method used to arrive at the Initial Enterprise Metric Value. Customer agrees that if the Enterprise Metric Value increases, additional Subscription Fees or SaaS Fees relating to the Enterprise License shall be due and payable, as described below.
1.1 Audit. Commencing with the Initial Audit Date and every 12 months thereafter (each, an “Audit Date”) during the term of Customer’s subscription:
(a) if the Enterprise Metric Value is Worker Population, Customer will report to Hyland in writing its Enterprise Metric Value (the “Customer Determination”); or
ASSET SIZE ATTACHMENT
ENTPRISE LICENSE TIERS
Minimum Assets Millions | Maximum Asset Millions |
50 | 100 |
100 | 150 |
150 | 200 |
200 | 300 |
300 | 400 |
400 | 500 |
500 | 750 |
750 | 1,000 |
1,000 | 1,250 |
1,250 | 1,500 |
1,500 | 1,750 |
1,750 | 2,000 |
2,000 | 2,999 |
3,000 | 3,999 |
4,000 | 4,999 |
5,000 | 5,999 |
6,000 | 7,999 |
8,000 | 9,999 |
10,000 | 11,999 |
12,000 | 13,999 |
14,000 | 15,999 |
16,000 | 17,999 |
18,000 | 19,999 |
20,000 | 21,999 |
22,000 | 23,999 |
24,000 | 25,999 |
26,000 | 27,999 |
28,000 | 29,999 |
30,000 | 31,999 |
32,000 | 33,999 |
34,000 | 35,999 |
36,000 | 37,999 |
38,000 | 39,999 |
40,000 | 41,999 |
42,000 | 43,999 |
44,000 | 45,999 |
46,000 | 47,999 |
48,000 | 49,999 |
50,000 | 51,999 |
52,000 | 53,999 |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 6th 2023 to October 4th 2023
DownloadTable of Contents
ENTERPRISE LICENSE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Enterprise License Schedule (this “Enterprise License Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Enterprise License Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Enterprise License Schedule.
DEFINED TERMS
All capitalized terms used in this Enterprise License Schedule shall have the meaning ascribed them in this Enterprise License Schedule or, if not defined in this Enterprise License Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Enterprise License Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Enterprise Metric Value” means, depending on the Enterprise Metric Value identified on the Order Form, one of the following:
(a) “Asset Size” means Customer’s then current asset size as reported on the website of the Federal Deposit Insurance Corporation or any successor agency thereto (“FDIC”) (currently, https://research.fdic.gov/bankfind/index.html).
(b) “Employee Population” means Customer’s full time employee population (as defined by the National Credit Union Administration or any successor agency thereto (“NCUA”)) as most recently reported by the NCUA.
(c) “Student Population” means Customer’s total student enrollment (full time), including undergraduate and graduate students, as most-recently reported by the Integrated Postsecondary Educational Data System or any successor system thereto (“IPEDS”).
(d) “Worker Population” means: (1) all employees who received W-2s (or a successor form) issued by or on behalf of the Customer with respect to the preceding calendar year; and (2) all non-US employees of Customer, as of the first day of the month prior to the Initial Audit Date or Audit Date, as applicable.
“Initial Enterprise Metric Value” shall mean the value identified as such on the Order Form.
“Initial Audit Date” shall mean the date identified as such on the Order Form.
“Enterprise License Tier Value” shall mean the value identified as such on the Order Form.
1. ADDITIONAL FEES FOR THE ENTERPRISE LICENSE. The initial fees for the Enterprise License as identified on the Order Form (the “Enterprise License”) are based on the Initial Enterprise Metric Value. The parties agree that subsequent determinations of the Enterprise Metric Value will be made consistent with the method used to arrive at the Initial Enterprise Metric Value. Customer agrees that if the Enterprise Metric Value increases, additional Subscription Fees or SaaS Fees relating to the Enterprise License shall be due and payable, as described below.
1.1 Audit. Commencing with the Initial Audit Date and every 12 months thereafter (each, an “Audit Date”) during the term of Customer’s subscription:
(a) if the Enterprise Metric Value is Worker Population, Customer will report to Hyland in writing its Enterprise Metric Value (the “Customer Determination”); or
3. TERM; TERMINATION. The Enterprise License Schedule shall be in effect for so long as Customer licenses or uses the Enterprise License.
4. CONTROLLING LANGUAGE. Hyland may make other versions of this Enterprise License Schedule available in other languages at this online location. This English language version of this Enterprise License Schedule controls over any version of the Enterprise License Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Enterprise License Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Enterprise License Schedule that may be made available at this online location in another language.
ASSET SIZE ATTACHMENT
ENTPRISE LICENSE TIERS
Minimum Assets Millions | Maximum Asset Millions |
50 | 100 |
100 | 150 |
150 | 200 |
200 | 300 |
300 | 400 |
400 | 500 |
500 | 750 |
750 | 1,000 |
1,000 | 1,250 |
1,250 | 1,500 |
1,500 | 1,750 |
1,750 | 2,000 |
2,000 | 2,999 |
3,000 | 3,999 |
4,000 | 4,999 |
5,000 | 5,999 |
6,000 | 7,999 |
8,000 | 9,999 |
10,000 | 11,999 |
12,000 | 13,999 |
14,000 | 15,999 |
16,000 | 17,999 |
18,000 | 19,999 |
20,000 | 21,999 |
22,000 | 23,999 |
24,000 | 25,999 |
26,000 | 27,999 |
28,000 | 29,999 |
30,000 | 31,999 |
32,000 | 33,999 |
34,000 | 35,999 |
36,000 | 37,999 |
38,000 | 39,999 |
40,000 | 41,999 |
42,000 | 43,999 |
44,000 | 45,999 |
46,000 | 47,999 |
48,000 | 49,999 |
50,000 | 51,999 |
52,000 | 53,999 |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Effective June 3rd 2023 to June 6th 2023
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ENTERPRISE LICENSE SCHEDULE
As of the Effective Date of the Incorporating Document (as defined below), this Enterprise License Schedule (this “Enterprise License Schedule”) is made part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this Enterprise License Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Enterprise License Schedule.
DEFINED TERMS
All capitalized terms used in this Enterprise License Schedule shall have the meaning ascribed them in this Enterprise License Schedule or, if not defined in this Enterprise License Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Enterprise License Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement.
“Enterprise Metric Value” means, depending on the Enterprise Metric Value identified on the Order Form, one of the following:
(a) “Asset Size” means Customer’s then current asset size as reported on the website of the Federal Deposit Insurance Corporation or any successor agency thereto (“FDIC”) (currently, https://research.fdic.gov/bankfind/index.html).
(b) “Employee Population” means Customer’s full time employee population (as defined by the National Credit Union Administration or any successor agency thereto (“NCUA”)) as most recently reported by the NCUA.
(c) “Student Population” means Customer’s total student enrollment (full time), including undergraduate and graduate students, as most-recently reported by the Integrated Postsecondary Educational Data System or any successor system thereto (“IPEDS”).
(d) “Worker Population” means: (1) all employees who received W-2s (or a successor form) issued by or on behalf of the Customer with respect to the preceding calendar year; and (2) all non-US employees of Customer, as of the first day of the month prior to the Initial Audit Date or Audit Date, as applicable.
“Initial Enterprise Metric Value” shall mean the value identified as such on the Order Form.
“Initial Audit Date” shall mean the date identified as such on the Order Form.
“Enterprise License Tier Value” shall mean the value identified as such on the Order Form.
1. ADDITIONAL FEES FOR THE ENTERPRISE LICENSE. The initial fees for the Enterprise License as identified on the Order Form (the “Enterprise License”) are based on the Initial Enterprise Metric Value. The parties agree that subsequent determinations of the Enterprise Metric Value will be made consistent with the method used to arrive at the Initial Enterprise Metric Value. Customer agrees that if the Enterprise Metric Value increases, additional Subscription Fees or SaaS Fees relating to the Enterprise License shall be due and payable, as described below.
1.1 Audit. Commencing with the Initial Audit Date and every 12 months thereafter (each, an “Audit Date”) during the term of Customer’s subscription:
(a) if the Enterprise Metric Value is Worker Population, Customer will report to Hyland in writing its Enterprise Metric Value (the “Customer Determination”); or
3. TERM; TERMINATION. The Enterprise License Schedule shall be in effect for so long as Customer licenses or uses the Enterprise License.
4. CONTROLLING LANGUAGE. Hyland may make other versions of this Enterprise License Schedule available in other languages at this online location. This English language version of this Enterprise License Schedule controls over any version of the Enterprise License Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this Enterprise License Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the Enterprise License Schedule that may be made available at this online location in another language.
ASSET SIZE ATTACHMENT
ENTPRISE LICENSE TIERS
Minimum Assets Millions | Maximum Asset Millions |
50 | 100 |
100 | 150 |
150 | 200 |
200 | 300 |
300 | 400 |
400 | 500 |
500 | 750 |
750 | 1,000 |
1,000 | 1,250 |
1,250 | 1,500 |
1,500 | 1,750 |
1,750 | 2,000 |
2,000 | 2,999 |
3,000 | 3,999 |
4,000 | 4,999 |
5,000 | 5,999 |
6,000 | 7,999 |
8,000 | 9,999 |
10,000 | 11,999 |
12,000 | 13,999 |
14,000 | 15,999 |
16,000 | 17,999 |
18,000 | 19,999 |
20,000 | 21,999 |
22,000 | 23,999 |
24,000 | 25,999 |
26,000 | 27,999 |
28,000 | 29,999 |
30,000 | 31,999 |
32,000 | 33,999 |
34,000 | 35,999 |
36,000 | 37,999 |
38,000 | 39,999 |
40,000 | 41,999 |
42,000 | 43,999 |
44,000 | 45,999 |
46,000 | 47,999 |
48,000 | 49,999 |
50,000 | 51,999 |
52,000 | 53,999 |
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Professional Services Terms and Conditions
Effective October 19th 2023
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PROFESSIONAL SERVICES TERMS AND CONDITIONS
As of the Effective Date of the Incorporating Document, these Professional Services Terms and Conditions (these “Terms and Conditions”) are part of the Incorporating Document (as defined in Section 1, below).
1. DEFINED TERMS.
“Agreement” means these Terms and Conditions, together with the Incorporating Document.
“Customer” means the entity that has entered into the Incorporating Document with Hyland. In the case that the counterparty is a certified channel partner of Hyland’s, Section 17.10 of these Terms and Conditions shall apply.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Hyland” means the Hyland company that is a party to the Incorporating Document.
“Incorporating Document” means the Services Proposal, Order Form or other agreement or document entered into between Customer and Hyland and within which these Professional Services Terms and Conditions are referenced or linked.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Hyland and Customer and each, a “Party”.
“Professional Services” means the services performed by Hyland under the Incorporating Document.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 13 or 14 of these Terms and Conditions.
“Software” means Hyland’s proprietary software product(s) or solution for which Customer has obtained a valid license from Hyland or one of its authorized channel partners.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under the Incorporating Document. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Hyland will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure, Hyland agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Incorporating Document that have been performed or developed, in whole or in part, by Hyland prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO INCORPORATING DOCUMENT. Hyland or Customer may, at any time, reasonably request a change to the Incorporating Document. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Hyland and signed by both Parties, that specifically references the Incorporating Document. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Incorporating Document, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Hyland is performing services hereunder, Customer shall provide to Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Hyland’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in the Incorporating Document: (a) Hyland will charge services fees to Customer for the Professional Services at Hyland’s then-current standard list price for the applicable Professional Services and (b) Hyland shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all invoice amounts (other than Disputed Amounts) in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Hyland for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Incorporating Document, Hyland shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Hyland issues such invoice.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS.
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Hyland or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Hyland during the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Hyland grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Hyland products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
(a) Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
(b) Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
(c) Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (i) is notified promptly after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 9.4(iv), Hyland shall remove the infringing portion of the Work Products and refund to Customer the services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Hyland to Customer; (iii) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (iv) Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS.
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 10.1 and 10.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Hyland will refund to Customer the portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY WORK PRODUCTS, INNOVATIONS, INFORMATION OR PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PROFESSIONAL SERVICES OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
11. TERMINATION.
11.1 Generally. Except as otherwise stated in an Incorporating Document, or otherwise agreed by the parties in writing, Customer or Hyland may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other Party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Hyland for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Hyland has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DAMAGES.
13. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
14. CONFIDENTIAL INFORMATION.
14.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not, to the knowledge of the recipient, bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
14.2 Each party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 14 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
14.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
15. NON-SOLICITATION; NO-HIRE. See Exhibit A attached hereto.
16. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit set forth below shall apply:
| Hyland Company | Additional Terms Exhibit |
| Hyland Software Australia Pty Ltd. Hyland Software Brasil Ltda. Hyland Colombia S.A.S. Hyland France S.A.S. Hyland Software Germany GmbH Hyland Mexico S. de R.L. de C.V. Hyland Software, Inc., if Customer is located in Peru | Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I |
17. GENERAL TERMS.
17.1. Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 17.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 17.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
17.2. Governing Law; Jurisdiction. See Exhibit B attached hereto.
17.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by this Agreement.
17.4 Subcontracting. Hyland may subcontract all or any part of the Professional Services, provided, that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
17.5 Independent Contractor. The Parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
17.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
17.7 Integration. This Agreement, including any exhibit, schedule or agreement attached to this Agreement or referenced in this Agreement, sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from one Party to the other, are rejected and shall be null and void and of no force or effect unless included in a written amendment mutually signed by the Parties. To the extent there is a conflict between these Terms and Conditions and the Incorporating Document, the terms of these Terms and Conditions control.
17.8 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
17.10 Certified Channel Partner. To the extent that Customer is a certified channel partner of Hyland’s, the Incorporating Document has been entered into by Customer for the benefit of an end user (an “End User”), and such End User has not previously entered into a separate contract with Hyland that governs the Professional Services provided under the Incorporating Document, the terms of this Section shall apply.
Customer and Hyland acknowledge and agree that Hyland is providing Professional Services to Customer for the benefit of End User; therefore, Customer (a) represents and warrants that it has entered into a binding contract with End User with respect to the project, under the terms of which Customer is permitted to retain Hyland as a subcontractor to provide the Professional Services contemplated pursuant to this Agreement; (b) agrees that the license to Work Products in Section 9.2 shall be sublicensed by Customer to the End User, subject to the restrictions stated therein and that other than the right to sublicense the Work Products, the license to the Work Products does not extend to Customer; and (c) agrees that it shall cause End User to comply with the provisions of this Agreement that are binding upon Customer as if End User was a Party, including by facilitating End User’s cooperation as requested by Hyland to provide the Professional Services and causing End User to abide by the restrictions and limitations contained herein. Further, Customer agrees that it shall be responsible for compliance with this Agreement by End User and expressly agrees to indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including reasonable attorneys’ fees and court costs, suffered or incurred by Hyland arising from any breach by End User of any provisions of this Agreement.
17.11 Controlling Language. Hyland may make other versions of these Terms and Conditions available in other languages at this online location. This English language version of these Terms and Conditions controls over any version of the Terms and Conditions made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Terms and Conditions are not made available at this online location in the Other Language, this English language version controls over any other version of the Terms and Conditions that may be made available at this online location in another language.
Exhibit A
Non-Solicitation; No-Hire
Section 15 of the Agreement (Non-Solicitation; No-Hire) shall be the terms set forth on this Exhibit A, based upon the applicable Hyland company listed below:
“Restricted Individuals” means any person (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement; and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
During the term of this Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will (except to the extent either party receives the prior written consent of the other party):
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a Restricted Individual, or otherwise encourage or assist any such Restricted Individual to leave the employ of the other party for any reason, in each case at any time during such Restricted Individual’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is a Restricted Individual.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 15(a). The Parties agree that this provision survives the termination of the Agreement.
(d) Section 15(d) of the Agreement shall be the terms set forth below, based upon the applicable Hyland company listed below:
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following terms shall apply as Section 15 of the Agreement (Non-Solicitation; No-Hire):
During the term of this Agreement, Customer will not:
For any Hyland company not referenced in this Exhibit A, Section 15 (Non-Solicitation; No-Hire) shall not apply.
Exhibit B
Governing Law; Jurisdiction
Section 17.2 of the Agreement (Governing Law; Jurisdiction) shall be the terms set forth in this Exhibit B, based upon the applicable Hyland company listed below:
Exhibit C
Hyland Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., this Exhibit C shall apply:
Australian Consumer Law for Users in Australia. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
The warranties provided by Hyland in this Agreement are in addition to other rights and remedies of Customer under the Australian Consumer Law and nothing in this Agreement is intended to limit these rights and remedies which cannot be excluded under the Australian Consumer Law. The goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
If Customer believes that it has an alleged non-conformance of warranty claim, such claim needs to be made within the applicable sixty (60) day warranty period and should be made to the warranty provider, Hyland, as follows: (1) in writing to Hyland at the following address: Attn: Legal Department, Hyland Software, Inc. 28105 Clemens Road, Westlake, Ohio 44145 (USA); or (2) in writing via email to Hyland at australianconsumerlaw@hyland.com.
Customer will bear the expense of making a warranty claim under the terms set forth on this Exhibit C.
If the purchase of the goods by Customer does not fall under the Australian Consumer Law, this Exhibit C shall not apply and the warranty and disclaimer otherwise stated in this Agreement shall control.
Exhibit D
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA, this Exhibit D shall apply:
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S. this Exhibit F shall apply:
12.3 The Parties acknowledge that these limitations and exclusions of Hyland’s liability reflect the allocation of risk under the Agreement and the economical balance required by the Parties, that the Agreement would not have been entered into without these limitations and exclusions, and that these limitations and exclusions shall remain in effect even in the event of termination or rescission of the Agreement.
Exclusion of Unforeseeability: The Parties declare that they measure and accept the risks inherent to the performance of the Agreement. By express agreement, the Parties waive the application of the provisions of article 1195 of the French Civil code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2. Section 9.2 of the Agreement shall be replaced in its entirety as follows:
Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompiling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
10.1 Limited Warranty for Professional Services. Hyland will perform the Professional Services in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes (a) non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement; and (b) any Professional Services in the nature of staff augmentation.
10.2 Limited Warranty for Work Products. For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
10.3 Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Agreement with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of this Agreement.
10.4 Disclaimer of Warranties. Section 10.4 is restated herein and tThe following is added to Section 10.4: Statutory warranty rights of the Customer shall remain unaffected.
10.5 The following is added as an additional Section 10.5:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by this Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THIS AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
If Hyland is Hyland Mexico S. de R.L. de C.V., this Exhibit H shall apply:
For purposes of this Section 12.1, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
If Hyland is Hyland Software, Inc., but Hyland is providing services within the country of Peru, this Exhibit I shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section 12.1, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective October 19th 2023
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GESCHÄFTSBEDINGUNGEN FÜR PROFESSIONELLE DIENSTLEISTUNGEN
Ab dem Datum des Inkrafttretens des Vertragsdokuments sind diese Geschäftsbedingungen für Professionelle Dienstleistungen („Geschäftsbedingungen“) Teil des Vertragsdokuments (wie nachfolgend im Abschnitt 1 definiert).
„Arbeitsergebnisse“ bezeichnet alle Elemente in Form von Computersoftware, einschließlich Quellcode, Objektcode, Skripten und allen Komponenten oder Elementen des Vorstehenden oder Elemente, die mit den Konfigurationstools der Software erstellt wurden, sowie alle Konstruktionsdokumente im Zusammenhang mit Gegenständen in Form von Computersoftware, die jeweils von Hyland erstellt, entwickelt, entdeckt, konzipiert oder eingeführt werden und entweder allein oder in Verbindung mit anderen bei der Erbringung von Dienstleistungen im Rahmen dieser Vereinbarung funktionieren. Falls zutreffend, umfasst der Begriff „Arbeitsergebnisse“ vorkonfigurierte Vorlagen oder VBScripts, die von Hyland im Rahmen der Konfiguration des Vorauserfassungsmoduls der Software erstellt oder anderweitig bereitgestellt wurden.
„Arbeitsstunde“ bezeichnet die Dienste einer (1) Person für einen Zeitraum von einer (1) Stunde (oder eines Teils davon) während der regulären Geschäftszeiten.
„Bestrittene Beträge“ bezeichnet die Beträge auf einer Rechnung, für die der Kund Hyland vor dem Fälligkeitsdatum der Rechnung eine schriftliche Mitteilung zukommen lässt, in der sie ihre Einwände gegen die Zahlung dieser Beträge darlegt.
„Dokumentation“ bedeutet: (1) soweit verfügbar, die in der Software enthaltenen „Hilfedateien“ oder (2), falls in der Software keine solchen „Hilfedateien“ enthalten sind, eine andere von Hyland veröffentlichte Dokumentation, die sich auf die Funktions-, Betriebs- oder Leistungsmerkmale der Software bezieht.
"Hyland“ bedeutet die Hyland Gesellschaft, die Vertragspartei des Vertragsdokuments ist.
„Kunde“ bezeichnet das Unternehmen, welches das Vertragsdokument mit Hyland abgeschlossen hat. Falls es sich bei der Vertragspartei um einen zertifizierten Vertriebspartner von Hyland handelt, gilt Abschnitt 17.10 dieser Geschäftsbedingungen.
„Parteien“ bedeutet Hyland und Kunde gemeinsam (jeweils einzeln „Partei“)
„Professionelle Dienstleistungen“ bezeichnet alle Dienstleistungen, die von Hyland in Erfüllung eines Vertragsdokuments erbracht werden.
„Software“ bedeutet Hylands eigene Softwareprodukte oder Lösungen, für die der Kunde eine gültige Lizenz von Hyland oder einem autorisierten Vertriebspartner von Hyland erworben hat.
„Spezifikationen“ bezeichnet die endgültigen Funktionsspezifikationen für Arbeitsergebnisse, sofern vorhanden, die von Hyland im Rahmen eines Vertragsdokuments erstellt wurden. Spezifikationen gelten bei Arbeitsergebnissen als Dokumentation im Sinne dieser Vereinbarung.
„Verbotene Handlung“ bedeutet: (a) das Entfernen von Urheberrechts-, Marken- oder andere Schutzrechtshinweisen, die auf oder während der Verwendung der Software, der Arbeitsergebnisse oder der Dokumentation erscheinen; (b) der Verkauf, die Übertragung, die Vermietung, das Leasing oder die Unterlizenzierung der Software, der Arbeitsergebnisse oder der Dokumentation and Dritte; (c) sofern dies nicht ausdrücklich in Bezug auf Software oder Arbeitsergebnisse gestattet ist, die Abänderung oder die Modifikation der Software, der Arbeitsergebnisse oder der Dokumentation; (d) das Reverse-Engineering, das Disassemblieren, das Dekompilieren, der Versuch, den Quell-Code abzuleiten, oder Anfertigung von abgeleiteten Werken und zwar in Bezug auf die Software, die Arbeitsergebnisse oder die Dokumentation; oder (e) der Verstoß gegen die Bestimmungen der Abschnitte 9, 13 oder 14 dieser Geschäftsbedingungen.
„Vereinbarung“ bedeutet diese Geschäftsbedingungen gemeinsam mit dem Vertragsdokument.
„Vertragsdokument“ bezeichnet das Leistungsangebot, das Bestellformular oder eine andere zwischen dem Kunden und Hyland geschlossene Vereinbarung oder Dokument, in der/dem auf diese Geschäftsbedingungen für Professionelle Dienstleistungen verwiesen wird oder diese Geschäftsbedingungen verlinkt sind.
2. AUSFÜHRUNG. Hyland wird die in dieser Vereinbarung beschriebenen Professionellen Dienstleistungen wie in dieser Vereinbarung enthalten oder wie zu einem von den Parteien einvernehmlich und schriftlich gesondert festgelegten Zeitpunkt und Zeitplan ausführen. Wenn Verzögerungen bei der Ausführung solcher Professionellen Dienstleistungen ausschließlich auf falsche Informationen, falsche Annahmen oder Nichterfüllung der Verpflichtungen des Kunden im Zusammenhang mit dieser Vereinbarung zurückzuführen sind, kann der Terminplan für das betreffende Projekt verlängert werden. Hyland übernimmt keine Haftung oder Verantwortung für Kosten oder Aufwendungen, die sich aus solchen Verzögerungen ergeben. Für den Fall, dass die Erfüllung eines in dieser Vereinbarung festgelegten Meilensteins aufgrund einer Verzögerung, die ausschließlich von Hyland verursacht wurde, nicht erreicht wird und sofern dieser Grund kein Ereignis höherer Gewalt ist, stimmt Hyland zu, ohne zusätzliche Kosten für den Kunden, die zusätzlichen Ressourcen und das Personal bereitzustellen, welche erforderlich sind, um sicherzustellen, dass eine solche Verzögerung nicht zu Verzögerungen späterer Meilensteine oder des Abschlusses der Professionellen Dienstleistungen führt. Die Parteien vereinbaren, dass alle in dem Vertragsdokument genannten Professionellen Dienstleistungen oder Arbeitsergebnisse, die vor der Unterschrift dieser Vereinbarung durch die Parteien ganz oder teilweise erbracht oder entwickelt wurden, dennoch allen Bestimmungen und Bedingungen dieser Vereinbarung unterfallen.
3. ÄNDERUNGEN DES VERTRAGSDOKUMENTS. Jede Partei ist jederzeit berechtigt, eine angemessene Änderung eines Vertragsdokuments zu beantragen. Jede angeforderte Änderung, die die Parteien gegenseitig akzeptieren (eine „Änderung“), wird in einem schriftlichen Änderungsauftrag aufgeführt, der von Hyland erstellt und von beiden Parteien vereinbart und unterzeichnet wird, wobei ausdrücklich auf das entsprechende Vertragsdokument verwiesen wird. Falls sich die Parteien nicht auf eine vorgeschlagene Änderung oder einen vorgeschlagenen Änderungsauftrag einigen können und sich diese vorgeschlagene Änderung auf eine wesentliche Komponente des Projekts bezieht, die Gegenstand des entsprechenden Vertragsdokuments ist, kann jede Partei diese Vereinbarung mit einer Frist von mindestens dreißig (30) Tagen im Voraus durch schriftliche Mitteilung an die andere Partei kündigen.
4. VERPFLICHTUNGEN DES KUNDEN.
4.1 Unterstützung und Verpflichtungen. Der Kunde erklärt sich damit einverstanden, mit Hyland bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung zusammenzuarbeiten und Hyland zu unterstützen, die in dieser Vereinbarung angegebenen Ressourcen bereitzustellen und alle Verpflichtungen zu erfüllen, die der Kunde gemäß den Bestimmungen dieser Vereinbarung erfüllen muss. Während eines Zeitraums, in dem Hyland Professionelle Dienstleistungen im Rahmen dieser Vereinbarung erbringt, muss der Kunde dem Hyland-Projektteam einen unabhängigen lokalen (vor Ort) und Remote-Zugriff (außerhalb des Standorts) gewähren und zwar über sichere Verbindungen, wie etwa eine Netzwerkverbindung, eine VPN-Verbindung oder andere ähnliche Methoden, sowie spezieller Benutzerkonten mit entsprechenden Berechtigungen für die entsprechende Software, Hardware oder virtueller Maschinen, die dem entsprechenden Softwaresystem zugeordnet sind. Remote- und lokaler Zugriff wird für alle bereitgestellten Umgebungen, einschließlich der Produktionsumgebung, gewährt. Der Kunde nimmt zur Kenntnis, dass die Fähigkeit von Hyland, die Professionellen Dienstleistungen zu erbringen, den festgelegten Leistungsplan einzuhalten und die Dienstleistungsgebühren in angemessener Weise mit den in dieser Vereinbarung angegebenen Schätzungen in Übereinstimmung zu bringen, beeinträchtigt werden kann, wenn der Kunde es versäumt, Unterstützung zu leisten und seine Verpflichtungen aus dieser Vereinbarung zu erfüllen.
4.2 Drittsoftware Nutzungsrechte. Ungeachtet gegenteiliger Bestimmungen und sofern der Kunde Hyland auffordert, Professionelle Dienstleistungen für oder in Bezug auf Software von Drittanbietern zu erbringen, sichert der Kunde gegenüber Hyland zu, dass er alle erforderlichen Nutzungsrechte an Drittsoftware hat, um dies Hyland zu ermöglichen.
4.3 Schutz der Kundensysteme. Sofern es sich nicht um eine von Hyland gehostete Lösung handelt, erklärt sich der Kunde damit einverstanden, dass er allein dafür verantwortlich ist, geeignete Maßnahmen zu ergreifen, um seine Computersysteme zu isolieren und zu sichern oder anderweitig zu archivieren, einschließlich seiner Computer Programme, Daten und Dateien.
4.4 Sichere Arbeitsumgebung. Der Kunde ist dafür verantwortlich und stellt sicher, dass alle angemessenen und rechtlichen Gesundheits- und Sicherheitsvorkehrungen getroffen wurden und voll funktionsfähig sind, um Hyland-Mitarbeiter, Vertreter oder Subunternehmer während des Aufenthalts beim Kunden zu schützen.
5. DIENSTLEISTUNGSGEBÜHREN. Sofern in dem jeweiligen Vertragsdokument nicht anderweitig vereinbart: (a) berechnet Hyland dem Kunden Dienstleistungsgebühren für Professionelle Dienstleistungen zum jeweils aktuellen Standard-Listenpreis von Hyland für die entsprechenden Professionellen Dienstleistungen und (b) stellt Hyland dem Kunden monatlich nachträglich Gebühren für Professionelle Dienstleistungen in Rechnung, basierend auf der Anzahl der für die Fertigstellung des Projekts erforderlichen Arbeitsstunden und den geltenden Stundengebühren. Der Kunde ist verpflichtet, alle Rechnungsbeträge (mit Ausnahme von Bestrittenen Beträgen) innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen. Alle Schätzungen der Gebühren oder Arbeitsstunden, die für die Fertigstellung des Projekts erforderlich sind, sind ungefähre Angaben zu der voraussichtlichen Höhe der Gebühren und der Zeit, die für die Fertigstellung des Projekts erforderlich sind. Die tatsächliche Anzahl der Arbeitsstunden kann variieren.
6. REISEKOSTEN UND SPESEN. Alle üblichen und angemessenen Auslagen und Kosten, die Hyland im Zusammenhang mit der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung entstehen (einschließlich Gebühren und Kosten für Reisen, Mahlzeiten, Unterkunft und Registrierungsanforderungen für Drittanbieter) gemäß den geltenden internen Richtlinien von Hyland für die Erstattung von Kosten und Aufwendungen an seine Mitarbeiter, sind Hyland gegenüber zu erstatten. Sofern in einem entsprechenden Vertragsdokument nichts anderes vereinbart ist, stellt Hyland dem Kunden alle erstattungsfähigen Kosten und Aufwendungen monatlich nachträglich in Rechnung und der Kunde hat die Rechnung innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen.
8. STEUERN UND STAATLICHE ABGABEN.Alle Zahlungen im Rahmen dieser Vereinbarung verstehen sich exklusive aller anfallenden Steuern und staatlichen Abgaben (z. B. Zölle), die alle vom Kunden zu zahlen sind (mit Ausnahme der Steuern auf das Einkommen von Hyland). Für den Fall, dass der Kunde gesetzlich verpflichtet ist, Steuern einzubehalten, verpflichtet sich der Kunde, Hyland alle erforderlichen Belege und Unterlagen vorzulegen, die eine solche Zahlung belegen. Falls Hyland gesetzlich verpflichtet ist, Steuern oder staatliche Abgaben im Namen oder auf Rechnung des Kunden abzuführen, verpflichtet sich der Kunde, Hyland innerhalb von dreißig (30) Tagen nach Erhalt einer entsprechenden schriftlichen Benachrichtigung entsprechend zu entschädigen. Der Kunde erklärt sich damit einverstanden, Hyland vor jeder Überweisung, die Hyland im Namen oder auf Rechnung des Kunden vornehmen muss, gültige Steuerbefreiungsbescheinigungen vorzulegen, sofern diese Bescheinigungen erforderlich sind.
9. ARBEITSERGEBNISSE.
9.2 Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
9.3 Änderung von Arbeitsergebnissen.
(a) Form der gelieferten Arbeitsprodukte. Die Form, in der Hyland Arbeitsergebnisse liefert, wird von Hyland in Abhängigkeit vom Zweck und der Funktionalität des Arbeitsergebnisses festgelegt.
(b) Konfigurierte Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert: (a) in Form von (i) Quellcode, der von Tools in der Software in Maschinensprache kompiliert wird; oder (ii) einem Skript; oder (b) welches unter Verwendung der Konfigurations-Tools in der Software erstellt wird (ein „Konfiguriertes Arbeitsergebnis“), gewährt Hyland dem Kunden das beschränkte Recht, das Konfigurierte Arbeitsergebnis zu modifizieren, vorausgesetzt, ein solches modifiziertes Konfiguriertes Arbeitsergebnis wird nur in Übereinstimmung mit den Bedingungen der beschränkten Lizenz für ein solches Arbeitsergebnis verwendet, die gemäß diesem Abschnitt gewährt wird.
(c) Unabhängige Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert, bei dem es sich nicht um ein Konfiguriertes Arbeitsergebnis handelt (ein „Unabhängiges Arbeitsergebnis“), darf der Kunde dieses Unabhängige Arbeitsergebnis nicht verändern oder modifizieren, es sei denn, der letzte Satz dieses Abschnittes sieht etwas anderes vor. Wenn Hyland ein Unabhängiges Arbeitsergebnis liefert und der Kunde das Recht zur Modifizierung des Unabhängigen Arbeitsergebnisses erhalten möchte, können die Parteien einvernehmlich vereinbaren, dass Hyland dem Kunden eine Kopie des Formats des Unabhängigen Arbeitsergebnisses liefert, das zur Modifizierung des Unabhängigen Arbeitsergebnisses erforderlich ist, vorbehaltlich und nach Zahlung der zusätzlichen Dienstleistungsgebühren durch den Kunden an Hyland, die Hyland möglicherweise für die Erstellung und Lieferung eines solchen Formats berechnen kann. In diesem Fall gewährt Hyland dem Kunden das Recht, das gelieferte Format des Unabhängigen Arbeitsergebnisses zu modifizieren und gegebenenfalls zu kompilieren, vorausgesetzt, dass das modifizierte Unabhängige Arbeitsergebnis nur in Übereinstimmung mit den Bedingungen der gemäß diesem Abschnitt gewährten beschränkten Lizenz für dieses gewährte Arbeitsergebnis verwendet wird.
9.4 Entschädigung für die Verletzungen gewerblicher Schutzrechte durch Arbeitsergebnisse. Hyland erklärt sich damit einverstanden, den Kunden von jeglicher Haftung und allen Kosten, einschließlich angemessener Anwaltskosten, freizustellen, die sich aus oder im Zusammenhang mit Ansprüchen, Handlungen oder Verfahren Dritter ergeben, die gegen den Kunden aufgrund einer Verletzung oder widerrechtlichen Aneignung eines Patents, eines eingetragenen Urheberrechts oder einer eingetragenen Marke eines Dritten, durch die Arbeitsergebnisse erhoben werden, vorausgesetzt, dass Hyland: (i) sofort benachrichtigt wird, nachdem der Kunde über einen solchen Anspruch informiert wurde; (ii) die alleinige Verantwortung für die Verteidigung und etwaige Vergleichsverhandlungen in Bezug auf einen solchen Anspruch trägt (vorausgesetzt, dass Hyland einen solchen Anspruch nicht ohne die vorherige schriftliche Zustimmung des Kunden vergleicht, wenn ein solcher Vergleich eine Vereinbarung oder ein Eingeständnis oder eine Anerkennung einer Haftung oder eines Fehlverhaltens seitens des Kunden enthält oder anderweitig eine Zahlung durch den Kunden erfordert); (ii) die angemessene Kooperation des Kunden bei der Verteidigung oder Beilegung eines solchen Anspruchs erhält; und (iv) das Recht hat, beim Eintreten oder bei der Wahrscheinlichkeit (nach Ansicht von Hyland) eines Verstoßes oder einer widerrechtlichen Aneignung entweder dem Kunden das Recht zur weiteren Nutzung der Arbeitsergebnisse zu verschaffen, oder die betreffenden Teile der Arbeitsergebnisse durch andere gleichwertige, nicht rechtsverletzende Teile zu ersetzen.
10. BESCHRÄNKTE GEWÄHRLEISTUNG FÜR DIENSTLEISTUNGEN UND ARBEITSERGEBNISSE
10.1 Beschränkte Gewährleistungen für Professionelle Dienstleistungen. Für einen Zeitraum von sechzig (60) Tagen ab dem Datum des Abschlusses der Professionellen Dienstleistungen gewährleistet Hyland gegenüber dem Kunden, dass diese Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus, die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von sechzig (60) Tagen ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnis, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
10.3 Abhilfe. Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß der Abschnitte 10.1 und 10.2 lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Frist von sechsig (60) Tagen schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder angemessene Anstrengungen unternehmen, um die nicht konformen Professionellen Dienstleistungen erneut auszuführen und versuchen, die fehlerhaften Professionellen Dienstleistungen zu korrigieren. Im Falle der Nichtkonformität eines Arbeitsproduktes wird Hyland das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann.
Sofern Hyland feststellt, dass eine Behebung der Nichtkonformität nach angemessener Zeit nicht möglich ist oder dass Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, besteht das einzige Recht des Kunden in Kündigung dieser Vereinbarung. In diesem Fall erstattet Hyland dem Kunden den Teil der vor der Kündigung in Bezug auf die Erstellung und Implementierung eines solchen nichtkonformen Arbeitsergebnisses oder der nichtkonformen Professionellen Dienstleistungen bezahlten Dienstleistungsgebühren.
10.4 Gewährleistungsausschluss. MIT AUSNAHME DER VORSTEHENDEN AUSDRÜCKLICHEN BESTIMMUNGEN GEBEN HYLAND UND SEINE LIEFERANTEN KEINE GARANTIEN, ZUSICHERUNGEN ODER GEWÄHRLEISTUNGEN IN BEZUG AUF ARBEITSERGEBNISSE, INNOVATIONEN, INFORMATIONEN ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN. HYLAND UND SEINE LIEFERANTEN LEHNEN ALLE ANDEREN AUSDRÜCKLICHEN, STILLSCHWEIGENDEN UND GESETZLICHEN GARANTIEN ODER GEWÄHRLEISTUNGEN AB UND SCHLIESSEN DIESE AUS, EINSCHLIESSLICH, ABER NICHT BESCHRÄNKT AUF GARANTIEN/GEWÄHRLEISTUNGEN GEGEN RECHTSVERLETZUNGEN, DIE STILLSCHWEIGENDE GARANTIE/GEWÄHRLEISTUNGEN DER MARKTGÄNGIGKEIT UND DER EIGNUNG FÜR EINEN BESTIMMTEN ZWECK SOWIE GARANTIEN/GEWÄHRLEISTUNG, DIE SICH AUS DEM VERLAUF DER LEISTUNG, DEM HANDELSBRAUCH ODER DER HANDELSGEWOHNHEIT ERGEBEN ODER ALS SOLCHE ANGESEHEN WERDEN KÖNNEN. HYLAND UND SEINE LIEFERANTEN GARANTIEREN UND GEWÄHRLEISTEN NICHT, DASS DIE ERBRACHTEN PROFESSIONELLEN DIENSTLEISTUNGEN ODER ARBEITSERGEBNISSE DEN ANFORDERUNGEN DES KUNDEN ENTSPRECHEN ODER FEHLERFREI SIND ODER DASS DER BETRIEB DER SOFTWARE ODER DER ARBEITSERGEBNISSE, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN, NICHT UNTERBROCHEN WIRD. SOFERN NICHT AUSDRÜCKLICH IN DIESER VEREINBARUNG ANGEGEBEN, ÜBERNIMMT HYLAND KEINERLEI HAFTUNG IN BEZUG AUF HARDWARE, FIRMWARE, SOFTWARE ODER DIENSTLEISTUNGEN VON DRITTEN.
11. KÜNDIGUNG.
11.1 Allgemein. Sofern nicht im Vertragsdokument oder anderweitig zwischen den Parteien schriftlich vereinbart, können der Kunde oder Hyland diese Vereinbarung aus beliebigen Gründen mit einer Frist von mindestens dreißig (30) Tagen schriftlich kündigen.
11.2 Kündigung durch eine der Parteien. Jede Partei kann diese Vereinbarung mit sofortiger Wirkung nach schriftlicher Mitteilung an die jeweils andere Partei in ihrer Gesamtheit kündigen, wenn die jeweils andere Partei gegen eine wesentliche Bestimmung diese Vereinbarung verstoßen hat und den Verstoß nicht innerhalb von dreißig (30) Tagen nach Erhalt der schriftlichen Mitteilung des Verstoßes durch die nicht verletzende Partei behoben hat; vorausgesetzt, dass Hyland nicht verpflichtet ist, dem Kunden die Möglichkeit zu geben, einen Verstoß im Falle einer Verbotenen Handlung zu beheben, die für alle Zwecke als wesentliche Bestimmungen dieser Vereinbarung betrachtet werden.
11.3 Kündigung dieser Vereinbarung. Im Falle jeder Kündigung dieser Vereinbarung ist der Kunde verpflichtet, alle Dienstleistungsgebühren, die sich auf von Hyland vor Wirksamkeit der Kündigung erbrachten Professionellen Dienstleistungen beziehen zu entrichten. Dies gilt nicht, sofern Hyland gegen eine Verpflichtung zur Erbringung von Professionellen Dienstleistung verstoßen hat und dieser Verstoß den Kündigungsgrund darstellt.
11.4 Auswirkungen der Kündigung. Bei jeder Beendigung dieser Vereinbarung (außer durch Hyland aufgrund eines Verstoßes des Kunden) bleibt die Lizenz des Kunden zur Nutzung der in dieser Vereinbarung enthaltenen Arbeitsergebnisse gemäß ihren Bedingungen bestehen.
12. HAFTUNGSBESCHRÄNKUNG.
12.1 WEDER DIE PARTEIEN NOCH IHRE VERBUNDENEN UNTERNEHMEN (UND IM FALLE VON HYLAND HYLAND’S LIEFERANTEN) SIND HAFTBAR, SEI ES AUFGRUND EINES VERTRAGS, EINER UNERLAUBTEN HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER EINES ANDEREN RECHTLICHEN GRUNDES FÜR INDIREKTE, ZUFÄLLIGE, BESONDERE ODER FOLGESCHÄDEN ODER FÜR ENTGANGENE EINNAHMEN, REPUTATION, EINSPARUNGEN ODER GEWINNE (MIT AUSNAHME DER IM RAHMEN DIESER VEREINBARUNG FÄLLIGEN GEBÜHREN), VERLUST ODER BESCHÄDIGUNG VON DATEN ODER PROGRAMMEN, KOSTEN FÜR ERSATZ ODER DIE BEHEBUNG VON SCHÄDEN ODER GESCHÄFTSUNTERBRECHUNGEN, SELBST WENN SIE AUF DIE MÖGLICHKEIT SOLCHER SCHÄDEN, VERLUSTE, AUSGABEN ODER KOSTEN HINGEWIESEN WURDEN.
12.2 DIE GESAMTE, KUMULATIVE HAFTUNG VON HYLAND (EINSCHLIESSLICH VERBUNDENEN UNTERNEHMEN UND LIEFERANTEN), DIE SICH AUS DIESER VEREINBARUNG ERGIBT, SEI ES AUS VERTRAG ODER UNERLAUBTER HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER AUS EINES ANDEREN RECHTLICHEN GRUNDES, ÜBERSTEIGT IN KEINEM FALL DEN GESAMTBETRAG, DEN DER KUNDE AN HYLAND FÜR DIE ERBRINGUNG DER DIENSTLEISTUNGEN, DIE DEN ANSPRUCH BEGRÜNDEN, INNERHALB DES ZWÖLF (12) MONATSZEITRAUMS, DER DEM ERSTEN ANSPRUCH BEGRÜNDENDEN EREIGNIS UNMITTELBAR VORAUSGEHT, TATSÄCHLICH GEZAHLT HAT (ABZÜGLICH ETWAIGER RÜCKERSTATTUNGEN ODER GUTSCHRIFTEN). IN BEZUG AUF PRODUKTE ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE DEM KUNDEN KOSTENLOS ZUR VERFÜGUNG GESTELLT WURDEN (WIE Z.B. EVALUIERUNGSSOFTWARE ODER -DIENSTLEISTUNGEN), HAFTEN WEDER HYLAND NOCH SEINE VERBUNDENEN UNTERNEHMEN ODER LIEFERANTEN FÜR SCHÄDEN.
13. EXPORT. Alle im Rahmen dieser Vereinbarung bereitgestellte Software, Arbeitsergebnisse oder Dokumentation, unterliegen den Exportkontrollgesetzen und -bestimmungen der Vereinigten Staaten und anderer Rechtsordnungen. Der Kunde verpflichtet sich, alle relevanten Exportkontrollgesetze und -bestimmungen, einschließlich der Bestimmungen des US-Handelsministeriums und aller US-Exportkontrollgesetze, einschließlich, aber nicht beschränkt auf die Exportverwaltungsbestimmungen des US-Handelsministeriums (EAR), vollständig einzuhalten, um sicherzustellen, dass die Software, die Arbeitsergebnisse oder die Dokumentation nicht unter Verstoß gegen die Gesetze der Vereinigten Staaten von Amerika oder die Gesetze und Vorschriften anderer Rechtsordnungen exportiert werden. Der Kunde verpflichtet sich, die Software, die Arbeitsergebnisse oder die Dokumentation nicht an Organisationen oder Staatsangehörige in den mit einem Embargo der Vereinigten Staaten belegten Gebieten wie Kuba, Iran, Nordkorea, Sudan, Syrien oder einem anderen Gebiet oder einer anderen Nation, für die das US-Handelsministerium, das US-Außenministerium, das US-Finanzministerium, die EU und/oder etwaige weitere Nationen ein Sanktionsprogramm für kommerzielle Aktivitäten unterhält, zu exportieren oder zu re-exportieren. Der Kunde darf die Software, die Arbeitsergebnisse oder die Dokumentation nicht für, gemäß den geltenden Gesetzen und Vorschriften der USA und anderer Gerichtsbarkeiten, verbotene Endanwendungen verwenden, einschließlich, aber nicht beschränkt auf Anwendungen im Zusammenhang mit nuklearer, chemischer oder biologischer Kriegsführung, Raketentechnologie (einschließlich unbemannter Luftfahrzeuge), militärischen Anwendungen oder nach den US Export Administration Regulations (EAR) oder anderen einschlägigen Gesetzen, Regeln oder Vorschriften der Vereinigten Staaten von Amerika und anderer Rechtsordnungen verbotenen oder eingeschränkten Verwendungen.
14. VERTRAULICHE INFORMATIONEN.
14.1 „Vertrauliche Informationen“ sind alle Informationen, die mit "proprietär" oder "vertraulich" gekennzeichnet sind, von denen die empfangende Partei weiß, dass sie vertraulich sind, oder die so beschaffen sind, dass sie üblicherweise zwischen Geschäftspartnern vertraulich sind, es sei denn, es gelten die Bestimmungen des nächsten Satzes. Zu den Vertraulichen Informationen gehören nicht Informationen: (a) die der Öffentlichkeit allgemein bekannt sind oder werden, ohne dass die empfangende Partei gegen diese Vereinbarung verstoßen hat, (b) in Bezug auf die die empfangende Partei nachweist, dass sie sich vor ihrer Offenlegung durch die offenlegende Partei im Besitz der empfangenden Partei befanden, (c) die die empfangende Partei von einem Dritten erhält, der gegenüber der offenlegenden Partei nicht durch Beschränkungen, Verpflichtungen oder Geheimhaltungspflichten gebunden ist, oder (d) in Bezug auf die die empfangende Partei nachweist, dass sie sie unabhängig und ohne Bezugnahme auf die Informationen der jeweils anderen Partei entwickelt hat.
14.3 Die Parteien erkennen an, dass ein Rechtsbehelf bei einem Verstoß gegen die Bestimmungen dieser Vereinbarung in Bezug auf Vertrauliche Informationen und Rechte an geistigem Eigentum nicht ausreicht, um die geschädigte Partei zu schützen, und dass die geschädigte Partei dementsprechend das Recht hat, zusätzlich zu allen anderen ihr zur Verfügung stehenden Rechtsbehelfen und Rechtsmitteln eine bestimmte Leistung oder einen Unterlassungsanspruch zu verlangen, um die Bestimmungen dieser Vereinbarung durchzusetzen.
15. ABWERBEVERBOT. EINSTELLUNGSVERBOT. Siehe Anlage A zu dieser Vereinbarung.
16. ZUSATZBESTIMMUNGEN. Wenn es sich bei Hyland um ein unten aufgeführtes Hyland-Unternehmen handelt, gelten die zusätzlichen oder alternativen Bedingungen, die in der unten aufgeführten Anlage – Zusatzbestimmungen aufgeführt sind:
Hyland-Unternehmen Zusatzbestimmungen
Hyland Software Germany GmbH Anlage C
17. ALLGEMEINE BESTIMMUNGEN
17.1 Höhere Gewalt. Ein Versäumnis, eine Verzögerung oder die Nichterfüllung einer Verpflichtung durch eine Partei (mit Ausnahme der Zahlung von Geldern) stellt keine Nichterfüllung oder Verletzung dar, soweit ein solches Versäumnis, eine solche Verspätung oder eine solche Nichterfüllung auf eine bestehende oder zukünftige Ursache zurückzuführen ist, die außerhalb der Kontrolle (einschließlich, aber nicht beschränkt auf: Maßnahmen oder Untätigkeit von Regierungs-, Zivil- oder Militärbehörden; Feuer; Streik, Aussperrung oder andere Arbeitskämpfe; Flut; Krieg; Aufruhr; Diebstahl; Erdbeben; Naturkatastrophe oder höhere Gewalt; Pandemien, Epidemien, nationale Notfälle, Nichtverfügbarkeit von Materialien oder Versorgungsunternehmen, Sabotage, Viren oder die Handlung, Fahrlässigkeit oder Versäumnis der anderen Partei) und außerhalb von Fahrlässigkeit oder vorsätzlichem Fehlverhalten der Partei liegt, der die Verzögerung oder Nichterfüllung sonst zur Last gelegt würde. Jede Partei, die sich auf eine der vorstehenden Ausführungen als Entschuldigung für die Nichterfüllung, den Verzug oder die verspätete Erfüllung berufen möchte, muss die andere Partei, sobald der Grund vorliegt, unverzüglich schriftlich über die Tatsachen informieren, die einen solchen Grund darstellen und wenn die Ursache nicht mehr besteht, dies der anderen Partei unverzüglich mitzuteilen. Dieser Abschnitt 17.1 schränkt in keiner Weise das Recht einer Partei ein, Ansprüche gegen Dritte wegen Schäden geltend zu machen, die aus diesen Gründen entstanden sind. Wenn ein Leistungstermin einer Partei im Rahmen dieser Vereinbarung gemäß diesem Abschnitt 17.1 um mehr als neunzig (90) Kalendertage verschoben oder verlängert wird, kann die andere Partei durch schriftliche Mitteilung während der Verschiebung oder Verlängerung und mindestens dreißig (30) Tage vor dem Datum des Inkrafttretens der Kündigung diese Vereinbarung kündigen.
17.2 Anwendbares Recht und Gerichtsstand. Siehe Anlage B zu dieser Vereinbarung.
17.3 Bindungswirkung; Abtretung. Diese Vereinbarung ist für die Parteien und ihre jeweiligen Rechtsnachfolger und zugelassenen Abtretungsempfänger bindend und kommt diesen zugute. Keine Partei darf diese Vereinbarung oder ihre Rechte oder Pflichten aus dieser Vereinbarung ganz oder teilweise an eine andere natürliche oder juristische Person ohne vorherige schriftliche Zustimmung der anderen Partei abtreten, übertragen oder unterlizenzieren, immer vorausgesetzt, dass eine solche Zustimmung nicht unbillig verweigert werden darf, wenn eine Partei diese Vereinbarung in ihrer Gesamtheit an den überlebenden Rechtsträger einer Fusion oder Konsolidierung oder an einen Käufer von im Wesentlichen allen Vermögenswerten dieser Partei überträgt, der alle Verpflichtungen dieser Partei aus dieser Vereinbarung schriftlich übernimmt. Jede Abtretung, die ohne Einhaltung der Bestimmungen dieses Abschnitts erfolgt, ist nichtig. Ungeachtet gegenteiliger Bestimmungen kann Hyland diese Vereinbarung ohne Zustimmung der anderen Partei durch schriftliche Mitteilung an die andere Partei an ein mit Hyland verbundenes Unternehmen abtreten. Der Kunde erkennt an, dass Hyland ein mit Hyland verbundenes Unternehmen und / oder eines seiner verbundenen Unternehmen die mit der Erfüllung der in dieser Vereinbarung vorgesehenen Verpflichtungen von Hyland beauftragen oder diese Verpflichtungen an ein solches verbundenes Unternehmen übertragen kann.
17.4 Vergabe von Unteraufträgen. Hyland kann alle oder einen Teil der Professionellen Dienstleistungen an Subunternehmer vergeben, vorausgesetzt Hyland bleibt gegenüber dem Kunden für die Erbringung von Dienstleistungen an Subunternehmer verantwortlich.
17.5 Unabhängige Vertragspartner. Die Parteien erkennen an, dass Hyland ein unabhängiger Auftragnehmer ist und dass Hyland für seine Verpflichtungen als Arbeitgeber für die Personen, die Professionelle Dienstleistungen erbringen, verantwortlich ist.
17.6 Dritte. Keine der hierin ausdrücklich oder stillschweigend enthaltenen Regelungen, ist dazu bestimmt oder so auszulegen, dass damit anderen natürlichen oder juristischen Person als den Parteien aufgrund dieser Vereinbarung Rechte oder Rechtsmittel übertragen oder gewährt werden. Drittanbieter von mit der Software gebündelten Softwareprodukten Drittbegünstigte im Hinblick auf diese Vereinbarung, soweit sie sich auf deren Softwareprodukte bezieht.
17.7 Integration. Diese Vereinbarung (einschließlich aller Anlagen oder Anhänge, die vorhanden sind oder auf die Bezug genommen wird) stellt die gesamte Vereinbarung zwischen den Parteien in Bezug auf den Gegenstand dieser Vereinbarung dar. Diese Vereinbarung tritt an die Stelle aller früheren Vereinbarungen, Verhandlungen und Gespräche zwischen den Parteien über denselben Gegenstand. Alle anderen Bedingungen, die von den Bedingungen dieser Vereinbarung abweichen oder sie ergänzen, unabhängig davon, ob sie in einer Bestellung oder einer anderen elektronischen, schriftlichen oder mündlichen Mitteilung einer Partei an die andere enthalten sind, werden zurückgewiesen und sind null und nichtig und ohne Kraft oder Wirkung, es sei denn, sie sind in einer schriftlichen Änderungsvereinbarung enthalten, die von den Parteien gegenseitig unterzeichnet wurde. Im Falle eines Widerspruchs zwischen diesen Geschäftsbedingungen und dem Vertragsdokument gehen die Bedingungen dieser Geschäftsbedingungen vor.
17.8 Salvatorische Klausel. Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig erklärt wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall wird die betroffene Bestimmung durch eine Bestimmung ersetzt, durch die die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung innerhalb der Grenzen des geltenden Rechts bzw. maßgeblicher Gerichtsentscheidungen bestmöglich erreicht werden.
17.9 Unternehmensrichtlinien. Hyland erkennt an, dass der Kunde Unternehmensrichtlinien unterhält, die für Personen gelten, die Dienstleistungen in den Räumlichkeiten oder im System des Kunden erbringen (zusammenfassend als "Unternehmensrichtlinien" bezeichnet). Bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung wird sich Hyland in angemessener Weise bemühen, die Unternehmensrichtlinien einzuhalten, soweit diese Unternehmensrichtlinien auf die Erbringung solcher Professionellen Dienstleistungen anwendbar sind, nicht im Widerspruch zur Vereinbarung oder einem anderen zwischen Hyland und dem Kunden bestehenden Vertrag stehen und Hyland rechtzeitig vor der Beauftragung der Professionellen Dienstleistungen zur Verfügung gestellt wurden. Ungeachtet gegenteiliger Bestimmungen in den Unternehmensrichtlinien erkennt der Kunde an und erklärt sich damit einverstanden, dass Hyland nicht vertragsbrüchig oder anderweitig verantwortlich sein wird, wenn eine Hyland-Ressource die Unternehmensrichtlinien nicht einhält und ein solches Versäumnis nicht anderweitig eine Verletzung dieser Vereinbarung darstellt, und dass der Kunde als einziges Rechtsmittel die einzelne(n) Ressource(n), die für das Versäumnis verantwortlich ist/sind, sofort aus seinen Räumlichkeiten entfernen und verlangen kann, dass diese einzelne(n) Ressource(n) keine weiteren Professionellen Dienstleistungen für den Kunden erbringen.
17.10 Zertifizierter Vertriebspartner. Sofern der Kunde ein zertifizierter Vertriebspartner von Hyland ist, das Vertragsdokument vom Kunden zugunsten eines Endbenutzers (ein "Endbenutzer") abgeschlossen wurde und dieser Endbenutzer nicht zuvor einen separaten Vertrag mit Hyland abgeschlossen hat, der die im Rahmen Vertragsdokument erbrachten Professionellen Dienstleistungen regelt, gelten die Bestimmungen dieses Abschnitts.
Der Kunde und Hyland erkennen an und vereinbaren, dass Hyland die Professionellen Dienstleistungen für den Kunden für die Verwendung durch den Endbenutzer erbringt; daher (a) sichert der Kunde zu und gewährleistet, dass er einen verbindlichen Vertrag mit dem Endbenutzer in Bezug auf das Projekt abgeschlossen hat, gemäß dessen Bedingungen der Kunde Hyland als Unterauftragnehmer mit der Erbringung der Professionellen Dienstleistungen gemäß dieser Vereinbarung beauftragen darf; (b) stimmt der Kunde zu, dass die Lizenz für die Arbeitsergebnisse gemäß Abschnitt 9.2 vom Kunden an den Endnutzer unter den dort genannten Einschränkungen unterlizenziert wird und dass sich die Lizenz für die Arbeitsergebnisse mit Ausnahme des Rechts zur Unterlizenzierung nicht auf den Kunden erstreckt; und (c) stimmt der Kunde zu, dass er den Endnutzer dazu veranlasst, die Bestimmungen dieser Vereinbarung einzuhalten, die für den Kunden verbindlich sind, als wäre der Endnutzer eine Vertragspartei, einschließlich der Unterstützung von Hyland in Bezug auf geforderte Zusammenarbeit des Endnutzers bei der Erbringung der Professionellen Dienstleistungen und der Veranlassung des Endnutzers, sich an die hierin enthaltenen Beschränkungen und Einschränkungen zu halten. Des Weiteren erklärt sich der Kunde damit einverstanden, dass er für die Einhaltung dieser Vereinbarung durch den Endnutzer verantwortlich ist und erklärt sich ausdrücklich damit einverstanden, Hyland von allen Ansprüchen, Verbindlichkeiten, Verlusten, Schäden und Kosten, einschließlich angemessener Anwalts- und Gerichtskosten, freizustellen, die Hyland aufgrund eines Verstoßes des Endnutzers gegen die Bestimmungen dieser Vereinbarung erleidet.
17.11 Sprache. Hyland kann andere Versionen dieser Geschäftsbedingungen in anderen Sprachen an diesem Online-Standort zur Verfügung stellen. Diese englischsprachige Version dieser Geschäftsbedingungen hat Vorrang vor jeder Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird, wenn das Vertragsdokument in Englisch ist. Wenn das Vertragsdokument in einer anderen Sprache als Englisch verfasst ist (eine solche Sprache wird als "andere Sprache" bezeichnet), diese Geschäftsbedingungen aber nicht in dieser anderen Sprache an diesem Online-Standort zur Verfügung gestellt werden, hat diese englische Version Vorrang vor jeder anderen Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird.
Anlage A
Abwerbeverbot. Einstellungsverbot
Abschnitt 15 der Vereinbarung (Abwerbeverbot; Einstellungsverbot) entspricht den in dieser Anlage A aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
„ Betroffene Personen“ sind alle Personen, (i) mit denen die einstellende Partei Kontakt hatte oder die der einstellenden Partei im Zusammenhang mit der Vereinbarung bekannt wurden, und (ii) die Mitarbeiter der anderen Partei sind oder waren, jeweils zu einem beliebigen Zeitpunkt während des Beschäftigungsverhältnisses dieser Person bei der anderen Partei oder innerhalb eines Jahres (1), nachdem diese Person aufgehört hat, Mitarbeiter der jeweils anderen Partei zu sein.
Während der Laufzeit dieser Vereinbarung und bis zu einem (1) Jahr nach Ablauf oder Beendigung der Vereinbarung werden weder der Kunde noch Hyland (es sei denn, eine der Parteien erhält die vorherige schriftliche Zustimmung der anderen Partei) folgendes unternehmen:
Für alle Hyland-Gesellschaften, die nicht in dieser Anlage A aufgeführt sind, gilt Abschnitt 15 (Abwerbeverbot; Einstellungsverbot) nicht.
Anlage B
Anwendbares Recht, Gerichtsstand.
Abschnitt 17.2 der Vereinbarung (Anwendbares Recht; Gerichtsstand) entspricht den in dieser Anlage B aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
Anlage C
Anwendbares Recht, Gerichtsstand.
Sofern es sich bei Hyland um Hyland Software Germany GmbH handelt, gilt die nachfolgende Anlage C:
Nach eigenem Ermessen von Hyland und nach schriftlicher Mitteilung an den Kunden sind alle überfälligen Rechnungsbeträge (mit Ausnahme der Bestrittenen Beträge) mit einem Zinssatz von neun (9) Prozentpunkten p.a. über den jeweils gültigen Zinssatz der EZB ab dem Fälligkeitsdatum bis zu dem Datum, an dem diese überfälligen Beträge und aufgelaufenen Zinsen vollständig gezahlt werden, zu verzinsen. Im Falle von: (a) Verzug des Kunden mit der Zahlung jeglicher Beträge (mit Ausnahme der Bestrittenen Beträge) und der Dauer dieses Verzugs von mindestens dreißig (30) Kalendertagen nach dem Fälligkeitsdatum einer solchen Zahlung; oder (b) wenn es den Parteien nicht gelingt, eine Streitigkeit in Bezug auf einen Bestrittenen Betrag innerhalb von sechzig (60) Tagen (oder innerhalb eines anderen von den Parteien schriftlich vereinbarten Zeitraums) nach Erhalt der schriftlichen Mitteilung über die rechtzeitige Beanstandung der Zahlung solcher Beträge durch Hyland beizulegen, hat Hyland das Recht, die Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung auszusetzen oder einzustellen, bis der Verzug behoben ist.
Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software, der Hyland Cloud Services, Add-On-Services, oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten, es sei denn, dies ist ausdrücklich gesetzlich erlaubt, weil es unerlässlich ist, diese Informationen zu erhalten, um die Interoperabilität eines unabhängig erstellten Computerprogramms mit anderen Programmen zu erreichen (§ 69e UrhG) oder zur Dekompilierung oder Vervielfältigung der Software nach den Bestimmungen des § 69d UrhG. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat, gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
10.1 Beschränkte Gewährleistung für Professionelle Dienstleistungen. Hyland gewährleistet gegenüber dem Kunden, dass die Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus (a), die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden; oder (b), die in Form von Personalaufstockung erbracht werden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von einem (1) Jahr ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnisse, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß diesem Abschnitt lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Gewährleistungsfrist schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder (a) das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann; oder (b) wenn Hyland feststellt, dass eine Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, dieser Vereinbarung in Bezug auf das nicht konforme Arbeitsergebnis kündigen; in diesem Fall erstattet Hyland, sofern der Kunde seinen Verpflichtungen bei der Kündigung nachkommt, einen Teil der vor dem Zeitpunkt der Kündigung bezahlten Dienstleistungsgebühren in Bezug auf die Erstellung und Implementierung eines solchen Arbeitsergebnisses. Die gesetzlichen Gewährleistungsrechte des Kunden bleiben vorbehaltlich der ausdrücklichen Bestimmungen dieser Vereinbarung unberührt.
10.4 Gewährleistungsausschluss.
Abschnitt 10.4 wird wie folgt ergänzt: Die gesetzlichen Gewährleistungsrechte des Kunden bleiben unberührt.
10.5 Folgendes wird als neuer Abschnitt 10.5 ergänzt:
In dem Maße, in dem die im Rahmen der vorliegenden Vereinbarung erbrachten Professionellen Dienstleistungen einen Werkvertrag darstellen, gelten in dieser Hinsicht die gesetzlichen Gewährleistungsbestimmungen mit folgender Einschränkung: Ausgenommen bei vorsätzlichem oder grob fahrlässigem Verhalten seitens Hyland wird die gesetzliche Gewährleistungsfrist auf ein Jahr beschränkt, beginnend mit der Abnahme der entsprechenden Professionellen Dienstleistungen.
Diese Gewährleistung schließt ausdrücklich nicht mit der Leistungsausführung zusammenhängende Probleme aus, die als Folge von Fehlfunktionen oder Mängeln bei Hard- oder Firmware, von Softwareprogrammen, die nicht von Hyland entwickelt wurden, von unrichtigen Daten oder unrichtigen Verfahren, die vom Kunden oder von Dritten verwendet bzw. vorgenommen werden, oder der Nichterfüllung seiner Verpflichtungen in Verbindung mit dem von dieser Vereinbarung erfassten Projekt von Seiten des Kunden entstehen. In diesen Fällen verpflichtet sich der Kunde, Hyland den Zeit- und Materialaufwand für Professionelle Dienstleistungen zu erstatten, die von Hyland auf Ersuchen des Kunden um Abhilfe bei nicht mit den Leistungen zusammenhängenden und damit ausgeschlossenen Problemen ausgeführt werden.
DIE HAFTUNG VON HYLAND IST BEI VORSATZ UND GROBER FAHRLÄSSIGKEIT UNBESCHRÄNKT. BEI LEICHTER FAHRLÄSSIGKEIT HAFTET HYLAND NUR: (A) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG DES LEBENS, DES KÖRPERS ODER DER GESUNDHEIT ERGEBEN, (B) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT (D.H. EINER PFLICHT, DEREN ERFÜLLUNG DIE ORDNUNGSGEMÄSSE DURCHFÜHRUNG DES VERTRAGES ÜBERHAUPT ERST ERMÖGLICHT UND AUF DEREN EINHALTUNG DER KUNDE REGELMÄSSIG VERTRAUEN DARF) ERGEBEN; IM FALLE DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT IST DIE HAFTUNG VON HYLAND AUF DEN ERSATZ DES VORHERSEHBAREN, TYPISCHERWEISE EINTRETENDEN SCHADENS BEGRENZT.
DIE VORSTEHENDEN HAFTUNGSBESCHRÄNKUNGEN GELTEN NICHT, WENN HYLAND EINEN MANGEL ARGLISTIG VERSCHWIEGEN ODER EINE GARANTIE FÜR DIE BESCHAFFENHEIT DER SOFTWARE ÜBERNOMMEN HAT. GLEICHES GILT FÜR ANSPRÜCHE NACH DEM PRODUKTHAFTUNGSGESETZ.
EINE WEITERGEHENDE HAFTUNG VON HYLAND IST AUSGESCHLOSSEN.
Eine Abtretung von Geldforderungen nach § 354a HGB bleibt hiervon unberührt.
Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig befunden wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall werden die Parteien die betroffene Bestimmung durch eine gemeinsame Vereinbarung in einer Weise ändern, in der die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung bestmöglich erreicht werden
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Confidential - Ó 2023 Hyland Software, Inc.
Effective October 19th 2023
DownloadTÉRMINOS Y CONDICIONES DE SERVICIOS PROFESIONALES
A la Fecha de Entrada en Vigor del Documento de Incorporación, estos Términos y Condiciones de Servicios Profesionales (estos "Términos y Condiciones") forman parte del Documento de Incorporación (como definido abajo en la Sección 1).
1. TÉRMINOS DEFINIDOS.
"Contrato" significa estos Términos y Condiciones, junto con el Documento de Incorporación.
"Cliente" significa la entidad que ha suscrito el Documento de Incorporación con Hyland. En el caso de que la contraparte sea un distribuidor autorizado de Hyland, se aplicará la Sección 17.10 de estos Términos y Condiciones.
"Importes en Disputa" significan los importes establecidos en cualquier factura en las que el Cliente haya notificado por escrito a Hyland, antes de la fecha de vencimiento de la factura, exponiendo las objeciones del Cliente, con un detalle razonable, a dichos importes.
"Documentación" significa: (a) en la medida en que estén disponibles, los "Archivos de Ayuda" incluidos en el Software, o (b) si no se incluyen "Archivos de Ayuda" en el Software, cualquier otra documentación publicada por Hyland, en cada caso, que esté relacionada con las características funcionales, operativas o de rendimiento del Software.
"Hyland" significa la compañía Hyland que forma parte del Documento de Incorporación.
"Documento de Incorporación" significa la Propuesta de Servicios, Hoja de Pedido u otro acuerdo o documento suscrito entre el Cliente y Hyland y dentro del cual se haga referencia o se enlace a estos Términos y Condiciones de Servicios Profesionales.
"Innovaciones" significan todos los diseños, procesos, procedimientos, métodos e innovaciones que son desarrolladas, descubiertas, concebidas o introducidas por Hyland, trabajando solo o en colaboración con otros, durante la ejecución del presente Contrato.
"Partes" significan Hyland y el Cliente y cada uno, una "Parte".
"Servicios Profesionales" significan los servicios prestados por Hyland en virtud del Documento de Incorporación.
"Acto Prohibido" significa (a) eliminación de cualquier aviso de copyright, marca comercial u otros derechos de propiedad que aparezcan durante el use del Software, de los Productos de Trabajo o de la Documentación ; (b) venta, transferencia, arrendamiento o sublicencia de cualquier Software, Productos de Trabajo o Documentación a un tercero; (c) salvo lo expresamente permitido con respecto al Software, los Productos de Trabajo, alterar o modificar el Software, los Productos de Trabajo o la Documentación; (d) realizar ingeniería inversa, desmontar, descompilar o intentar obtener el código fuente del Software, los Productos de Trabajo o la Documentación, o preparar trabajos derivados de los mismos; o (e) incumplir cualquier disposición de las Secciones 9, 13 o 14 de estos Términos y Condiciones.
"Software" significa el/los producto(s) o solución de software propiedad de Hyland para los que el Cliente ha obtenido una licencia válida de Hyland o de uno de sus distribuidores autorizados.
"Especificaciones" significan las especificaciones funcionales definitivas y finales de los Productos de Trabajo, en su caso, elaboradas por Hyland en virtud del Documento de Incorporación. Las Especificaciones deben ser consideradas Documentación, cuando se utilicen en el presente Contrato, en el caso de los Productos de Trabajo.
"Hora de Trabajo" significa los servicios de una (1) persona por un período de una (1) hora (o cualquier parte de la misma) durante el horario laboral habitual.
"Productos de Trabajo" significan todos los elementos que tengan la naturaleza de un producto de software, incluidos el código fuente, el código objeto, los scripts y cualquier componente o elemento de éstos, o los elementos creados utilizando las herramientas de configuración del Software, junto con todos y cada uno de los documentos de diseño asociados a los elementos que tengan la naturaleza de un producto de software, en cada caso creados, desarrollados, descubiertos, concebidos o introducidos por Hyland, trabajando solo o en colaboración con otros, en la prestación de los servicios previstos en el presente Contrato. Si es aplicable, los Productos de Trabajo incluirán cualquier plantilla preconfigurada o VBScripts que hayan sido o puedan ser creados o proporcionados de otro modo por Hyland al Cliente como parte de la configuración del módulo de captura avanzada del Software.
2. CUMPLIMIENTO. Hyland prestará los Servicios Profesionales descritos en el presente Contrato en el momento y según el cronograma establecidos en el presente Contrato o según lo acordado mutuamente por las Partes por escrito. Si se produjera algún retraso en la prestación de los Servicios Profesionales únicamente como consecuencia de cualquier información incorrecta, suposición incorrecta o incumplimiento por parte del Cliente de sus obligaciones en relación con el presente Contrato, podrá ampliarse el calendario de ejecución del proyecto aplicable. Hyland no tendrá responsabilidad alguna por los costes o gastos derivados de dichos retrasos. En caso de que no se cumpla algún hito establecido en el presente Contrato debido a un retraso causado exclusivamente por Hyland, y siempre que dicha causa no sea un caso de fuerza mayor, Hyland se compromete, sin cargo adicional para el Cliente, a destinar los recursos y el personal adicionales que sean necesarios para garantizar que dicho retraso no provoque el retraso de hitos posteriores o la finalización de los Servicios Profesionales. Las Partes acuerdan que los Servicios Profesionales o cualesquiera Productos de Trabajo descritos en el Documento de Incorporación que hayan sido realizados o desarrollados, en su totalidad o en parte, por Hyland antes de la ejecución de este Contrato, estarán cubiertos por todos los términos y condiciones de este Contrato.
3. CAMBIOS AL DOCUMENTO DE INCORPORACIÓN. Hyland o el Cliente podrán, en cualquier momento, solicitar razonablemente una modificación al Documento de Incorporación. Cualquier cambio que las Partes acepten mutuamente (en adelante "Cambio") se establecerá por un escrito preparado por Hyland y firmada por ambas Partes, que haga referencia específica al Documento de Incorporación. En caso de que las Partes no puedan llegar a un acuerdo mutuo sobre un Cambio propuesto o una orden de cambio propuesta, y dicho Cambio propuesto se refiera a un componente material del proyecto objeto del Documento de Incorporación, cualquiera de las Partes podrá rescindir el presente Contrato previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
4. OBLIGACIONES DEL CLIENTE.
4.1 Asistencia y obligaciones. El Cliente acepta que cooperará con Hyland y le prestará asistencia en la prestación de los Servicios Profesionales en virtud del presente Contrato, proporcionará los recursos especificados en el presente Contrato y realizará o cumplirá todas las obligaciones que el Cliente deba realizar o cumplir en virtud de los términos del presente Contrato. Durante cualquier periodo en el que Hyland preste servicios en virtud del presente, el Cliente proporcionará al equipo de proyecto de Hyland acceso local (in situ) y remoto (fuera de las instalaciones) independiente mediante el uso de conexiones seguras, como una conexión de red, una conexión VPN u otros métodos similares, y cuentas de usuario dedicadas con los privilegios adecuados al Software, hardware o máquinas virtuales aplicables asignados al sistema de Software aplicable. Se concederá acceso remoto y local para todos los entornos aprovisionados, incluida la producción. El Cliente reconoce que, si no presta asistencia o no realiza o cumple sus obligaciones de conformidad con el presente Contrato, la capacidad de Hyland para prestar los Servicios Profesionales, cumplir el calendario de rendimiento establecido en el presente Contrato y mantener las tarifas de servicios razonablemente en línea con cualquier estimación realizada en el presente Contrato puede verse afectada negativamente.
4.2 Derechos de Software de Terceros. A pesar de cualquier condición contraria, si el Cliente solicita a Hyland que preste Servicios Profesionales en o con respecto a cualquier software de terceros, el Cliente declara y garantiza a Hyland que el Cliente tiene todos los derechos necesarios para permitir que Hyland lo haga.
4.3 Protección de los Sistemas del Cliente. EXCEPTO EN LO RELATIVO A UNA SOLUCIÓN DE ALOJAMIENTO POR HYLAND, EL CLIENTE ENTIENDE QUE ES EL ÚNICO RESPONSABLE DE TOMAR LAS MEDIDAS ADECUADAS PARA AISLAR Y REALIZAR COPIAS DE SEGURIDAD O ARCHIVAR DE OTRO MODO SUS SISTEMAS INFORMÁTICOS, INCLUIDOS SUS PROGRAMAS INFORMÁTICOS, DATOS Y ARCHIVOS.
4.4 Entorno de Trabajo Seguro. El Cliente será responsable y se asegurará de que, mientras los empleados, agentes o subcontratistas de Hyland se encuentren en las instalaciones del Cliente, se tomen todas las precauciones legales y adecuadas en materia de salud y seguridad y estén plenamente operativas para proteger a dichas personas.
5. TARIFAS DE SERVICIOS. Salvo que se estipule lo contrario en el Documento de Incorporación: (a) Hyland cobrará al Cliente las tarifas de servicios por los Servicios Profesionales al precio de lista estándar de Hyland vigente en ese momento para los Servicios Profesionales aplicables y (b) Hyland facturará al Cliente las tarifas por los Servicios Profesionales mensualmente, a mes vencido, en función del número de Horas de trabajo necesarias para completar el proyecto y las tarifas por hora aplicables, y el Cliente abonará todos los importes de las facturas (salvo los Importes en Disputa) en su totalidad en un plazo de treinta (30) días a partir de la fecha de la factura. Cualquier estimación de las tarifas o de las Horas de Trabajo necesarias para completar el proyecto son aproximaciones del importe previsto de las tarifas y del tiempo necesario para completar el proyecto. El número real de Horas de Trabajo puede variar.
6. VIAJES Y GASTOS. El Cliente será responsable de pagar o reembolsar a Hyland todos los costes y gastos de bolsillo razonables en los que incurra Hyland en relación con la prestación de Servicios Profesionales en virtud del presente Contrato (incluidos las tarifas y gastos relativos a viajes, comidas, alojamiento y requisitos de registro de proveedores terceros) de conformidad con la política interna aplicable de Hyland para el reembolso de costes y gastos a sus empleados. Salvo que se estipule lo contrario en el Documento de Incorporación, Hyland facturará al Cliente todos los costes y gastos reembolsables mensualmente, a mes vencido; y el Cliente pagará en su totalidad cada una de las facturas emitidas en virtud del presente Contrato en un plazo neto de treinta (30) días a partir de la fecha en que Hyland emita dicha factura.
7. DETERMINADOS RECURSOS EN CASO DE IMPAGO O RETRASO EN EL PAGO. A elección de Hyland, que podrá ejercer mediante notificación por escrito al Cliente, cualquier importe vencido (salvo los Importes en Disputa) devengarán intereses a un tipo del uno y medio por ciento (1,5%) mensual (o, si es inferior, el tipo máximo legalmente exigible) desde la fecha de vencimiento hasta la fecha en que dichos importes vencidos y los intereses devengados se abonen en su totalidad. En caso de (a) incumplimiento por parte del Cliente en el pago de cualquier importe (salvo los Importes en Disputa) , cuyo incumplimiento continúe sin subsanarse durante al menos treinta (30) días naturales después de la fecha de vencimiento de dicho pago o (b) incapacidad de las Partes para resolver una disputa relacionada con un Importe en Disputa en un plazo de sesenta (60) días (o cualquier otro período acordado mutuamente, por escrito, por las Partes) tras la recepción por parte de Hyland de una notificación por escrito del Cliente en la que se impugne puntualmente el pago de dichos importes, Hyland tendrá derecho a suspender o cesar la prestación de cualquier Servicio Profesional el presente Contrato a menos que se haya subsanado dicho incumplimiento o se haya resuelto dicha disputa.
8. IMPUESTOS Y CARGAS GUBERNAMENTALES. Todos los pagos realizados en virtud del presente Contrato excluyen todos los impuestos y cargos gubernamentales aplicables (como aranceles), todos los cuales correrán a cargo del Cliente (salvo los impuestos sobre los ingresos de Hyland). En caso de que el Cliente esté obligado por ley a retener impuestos, el Cliente acepta proporcionar a Hyland todos los recibos y la documentación necesarios que justifiquen dicho pago. Si Hyland está obligado por ley a remitir cualquier impuesto o carga gubernamental en nombre o por cuenta del Cliente, el Cliente acepta reembolsar a Hyland en un plazo de treinta (30) días a partir de la fecha en que Hyland notifique al Cliente por escrito dicha remisión. El Cliente acepta proporcionar a Hyland certificados válidos de exención de impuestos antes de cualquier envío que Hyland deba realizar en nombre o por cuenta del Cliente, cuando dichos certificados sean aplicables.
9. PRODUCTOS DE TRABAJO.
9.1 Propiedad. EL PRESENTE CONTRATO NO ES UN CONTRATO DE TRABAJO POR ENCARGO. Hyland o sus proveedores conservan, con carácter exclusivo, para sí o para ellos, todos los derechos, títulos e intereses sobre cualquier propiedad intelectual desarrollada, descubierta, concebida o introducida por Hyland durante la ejecución del presente Contrato, incluidas, entre otras, todas las patentes, solicitudes de patentes, derechos de autor, marcas comerciales, otros derechos de propiedad intelectual y derechos de información confidencial y de propiedad sobre cualquier Producto de Trabajo, Innovación o Documentación, o relacionados con ellos. El Software, la Documentación y los Productos de Trabajo están protegidos por leyes de derechos de autor y tratados internacionales sobre derechos de autor, así como por otras leyes y tratados sobre propiedad intelectual. No se transfiere al Cliente ningún derecho de propiedad sobre el Software, las Innovaciones o los Productos de Trabajo. El Cliente acepta que nada de lo dispuesto en el presente Contrato o en los documentos asociados le otorga derecho, titularidad o interés alguno sobre el Software, la Documentación o los Productos de Trabajo, salvo los derechos expresos limitados que se conceden en el presente Contrato.
9.2 Licencia de los Productos de Trabajo. Hyland concede al Cliente una licencia limitada, no exclusiva y no transferible para utilizar los Productos de Trabajo únicamente en relación con el uso autorizado por parte del Cliente del Software o de otros productos o servicios de Hyland (conjuntamente, "Producto Principal de Hyland") con los que Hyland haya entregado dicho Producto de Trabajo para su uso por parte del Cliente. El Cliente no podrá: (a) realizar ni autorizar la realización de copias de ningún Producto de Trabajo; (b) eliminar ningún aviso de Hyland en los Productos de Trabajo; (c) vender, transferir, alquilar, contrato de leasing, tiempo compartido o sublicenciar los Productos de Trabajo a terceros; o (d) desensamblar, descompilar, realizar ingeniería inversa o intentar obtener el código fuente de cualquier Producto de Trabajo por cualquier motivo. Asimismo, el Cliente acepta que, en relación con cualquier uso de los Productos de Trabajo por parte del Cliente, los Productos de Trabajo no se copiarán ni instalarán en servidores adicionales a menos que el Cliente haya adquirido una licencia para ello. Se aplicarán a los Productos de Trabajo todas las restricciones de uso del Producto Principal de Hyland, incluidas, entre otras, las restricciones a la exportación y las disposiciones relativas al Usuario final del Gobierno de EE. UU. en virtud de los términos del acuerdo de licencia en virtud del cual el Cliente recibió el derecho a utilizar el Software con el que se utilizarán los Productos de Trabajo. Si la licencia del Producto Principal de Hyland con la que Hyland entregó dicho Producto de Trabajo para su uso por parte del Cliente finaliza, el derecho del Cliente a utilizar el Producto de Trabajo aplicable también finalizará. Todos los derechos y obligaciones posteriores a la finalización con respecto al Producto Principal de Hyland aplicable también se aplicarán al Producto de Trabajo.
9.3 Modificación de Productos de Trabajo.
(a) Forma de los Productos de Trabajo entregados. La forma en la que Hyland entregue los Productos de Trabajo será determinada por Hyland en función del propósito y la funcionalidad del Producto de Trabajo.
(b) Productos de Trabajo de Configuración. Si Hyland entrega un Producto de Trabajo: (a) en forma de (i) código fuente compilado por las herramientas del Software en lenguaje de máquina; o (ii) un script; o (b) creado utilizando las herramientas de configuración del Software (un "Producto de Trabajo de Configuración"), Hyland concede al Cliente el derecho limitado a modificar el Producto de Trabajo de Configuración, siempre que dicho Producto de Trabajo de Configuración modificado se utilice únicamente de conformidad con los términos de la licencia limitada para dicho Producto de Trabajo concedida en virtud de la presente Sección.
(c) Productos de Trabajo Independientes. Si Hyland entrega un Producto de Trabajo que no es un Producto de Trabajo de Configuración (un "Producto de Trabajo Independiente"), el Cliente no podrá alterar ni modificar dicho Producto de Trabajo Independiente, salvo que se indique lo contrario en la última frase de este párrafo. Si Hyland entrega un Producto de Trabajo Independiente y el Cliente desea obtener el derecho a modificarlo, las Partes podrán acordar mutuamente que Hyland entregue al Cliente una copia del formato del Producto de Trabajo Independiente que sea necesaria para que el Cliente pueda completar sus modificaciones, siempre y cuando el Cliente realice a Hyland el previo pago de cualquier tarifas adicionales por Servicios Profesionales que Hyland pueda cobrar por preparar y entregar dicho formato. En tal caso, Hyland concede al Cliente el derecho a modificar y, si fuera necesario, compilar el formato entregado del Producto de Trabajo Independiente, siempre que dicho Producto de Trabajo Independiente modificado se utilice únicamente de conformidad con los términos de la licencia limitada de dicho Producto de Trabajo concedida en virtud de la presente Sección.
9.4 Indemnización por Infracción de los Productos de Trabajo. Hyland acepta indemnizar al Cliente por cualquier responsabilidad y gasto, incluidos los honorarios razonables de abogados, derivados o relacionados con cualquier reclamación, acción o procedimiento de terceros iniciado contra el Cliente basado en cualquier infracción o apropiación indebida por parte de los Productos de Trabajo de cualquier patente, derecho de autor registrado o marca comercial registrada de un tercero, siempre que Hyland: (i) sea notificado rápidamente después de que el Cliente reciba la notificación de dicha reclamación; (ii) sea el único encargado de la defensa y de las negociaciones para llegar a un acuerdo con respecto a dicha reclamación, siempre que Hyland no llegue a un acuerdo con respecto a dicha reclamación sin el consentimiento previo por escrito del Cliente si dicho acuerdo contiene una estipulación o admisión o reconocimiento de cualquier responsabilidad o acto ilícito por parte del Cliente o requiere de otro modo un pago por parte del Cliente; (iii) reciba la cooperación razonable del Cliente en la defensa o resolución de dicha reclamación; y (iv) tenga derecho, en caso de que se produzca o sea probable (en opinión de Hyland) que se produzca una infracción o apropiación indebida, a obtener para el Cliente el derecho a seguir utilizando los Productos de Trabajo o a sustituir las partes pertinentes de los Productos de Trabajo por otras partes equivalentes que no supongan una infracción.
(a) Retirada y reembolso. Si Hyland no puede llevar a cabo ninguna de las opciones establecidas en la Sección 9.4(iv), Hyland retirará la parte infractora de los Productos de Trabajo y reembolsará al Cliente las tarifas de servicios abonadas, en su caso, por el Cliente en relación únicamente con la creación e implementación de los Productos de Trabajo infractores en virtud del presente Contrato.
(b) Exclusiones. Sin perjuicio de cualquier disposición en contrario, Hyland no tendrá obligación alguna ante el Cliente de defender o satisfacer ninguna reclamación presentada contra el Cliente y descrita de otro modo en la Sección 9.4 que surja de: (i) el Cliente utilizó los Productos de Trabajo por parte del Cliente de forma expresamente no permitida por el presente Contrato; (ii) la combinación de los Productos de Trabajo con cualquier producto no suministrado por Hyland al Cliente; (iii) la modificación o adición de los Productos de Trabajo por parte de otro que no sea Hyland o cualquiera de sus distribuidores autorizados contratados específicamente por Hyland para proporcionar dicha modificación o adición; o (iv) los métodos, procesos, información o datos empresariales del Cliente.
(c) ESTA SECCIÓN 9.4 ESTABLECE LA RESPONSABILIDAD TOTAL DE HYLAND Y EL RECURSO ÚNICO Y EXCLUSIVO DEL CLIENTE CON RESPECTO A CUALQUIER SUPUESTA INFRACCIÓN O APROPIACIÓN INDEBIDA DE PROPIEDAD INTELECTUAL O PROPIEDAD INTELECTUAL POR LOS PRODUCTOS DE TRABAJO.
10. GARANTÍA LIMITADA PARA SERVICIOS Y PRODUCTOS DE TRABAJO.
10.1 Garantía Limitada para los Servicios Profesionales. Durante un periodo de sesenta (60) días a partir de la fecha de finalización de los Servicios Profesionales, Hyland garantiza al Cliente que dichos Servicios Profesionales se han prestado de forma correcta y profesional y sustancialmente de acuerdo con los estándares del sector. Esta garantía excluye específicamente los problemas de rendimiento causados por datos o procedimientos incorrectos utilizados o proporcionados por el Cliente o un tercero, o por fallos del Cliente para realizar y cumplir sus obligaciones en virtud del presente Contrato.
10.2 Garantía limitada de los Productos de Trabajo. Durante un periodo de sesenta (60) días a partir de la fecha en que Hyand haya entregado al Cliente un Producto de Trabajo terminado, Hyland garantiza al Cliente que dicho Producto de Trabajo, cuando se instale y utilice correctamente, funcionará en todos los aspectos materiales tal y como se describe en las Especificaciones. Los términos de esta garantía no se aplicarán a, y Hyland no tendrá ninguna responsabilidad por cualquier no conformidad relacionada con, cualquier Producto de Trabajo que haya sido (a) modificado o añadido por el Cliente o un tercero, (b) utilizado en combinación con equipos o software distintos de los que se ajustan a las Especificaciones, o (c) mal utilizado o abusado.
10.3 Recurso. La única obligación de Hyland, y el único y exclusivo recurso del Cliente en caso de no conformidad con las garantías limitadas expresas de las Secciones 10.1 y 10.2 serán los siguientes: siempre que, dentro del periodo aplicable de sesenta (60) días, el Cliente notifique por escrito a Hyland la no conformidad, Hyland realizará todos los esfuerzos razonables para volver a prestar los servicios no conformes en un intento de corregir la(s) no conformidad(es) o, en el caso de un Producto de Trabajo, reparar o sustituir el Producto de Trabajo no conforme, lo que puede incluir la entrega de una solución comercialmente razonable para subsanar la no conformidad. Si Hyland no puede corregir dicha(s) disconformidad(es) tras un periodo de tiempo razonable o determina que la reparación o sustitución del Producto de Trabajo no es comercialmente razonable, el único y exclusivo recurso del Cliente será rescindir el presente Contrato, en cuyo caso Hyland reembolsará al Cliente la parte de las tarifas de servicios en virtud del presente Contrato relacionados directamente con dichos Servicios Profesionales disconformes o con la creación e implementación del Producto de Trabajo disconforme, en cualquier caso abonados antes de dicha rescisión.
10.4 Exclusión de garantías. SALVO EN LOS CASOS INDICADOS ANTERIORMENTE, HYLAND Y SUS PROVEEDORES NO OFRECEN NINGUNA GARANTÍA NI DECLARACIÓN EN RELACIÓN CON LOS PRODUCTOS DE TRABAJO, LAS INNOVACIONES, LA INFORMACIÓN O LOS SERVICIOS PROFESIONALES PRESTADOS EN VIRTUD DEL PRESENTE CONTRATO. HYLAND Y SUS PROVEEDORES RECHAZAN Y EXCLUYEN CUALQUIER OTRA GARANTÍA EXPRESA, IMPLÍCITA Y LEGAL, INCLUIDAS, ENTRE OTRAS, LAS GARANTÍAS CONTRA INFRACCIONES, LAS GARANTÍAS IMPLÍCITAS DE COMERCIABILIDAD E IDONEIDAD PARA UN FIN DETERMINADO, Y LAS GARANTÍAS QUE PUEDAN SURGIR O CONSIDERARSE SURGIDAS DE CUALQUIER CURSO DE EJECUCIÓN, CURSO DE NEGOCIACIÓN O USO COMERCIAL. HYLAND Y SUS PROVEEDORES NO GARANTIZAN QUE LOS SERVICIOS PROFESIONALES O LOS PRODUCTOS DE TRABAJO PROPORCIONADOS SATISFAGAN LOS REQUISITOS DEL CLIENTE O ESTÉN EXENTOS DE DEFECTOS O ERRORES, NI QUE EL FUNCIONAMIENTO DEL SOFTWARE O DE LOS PRODUCTOS DE TRABAJO PROPORCIONADOS EN VIRTUD DEL PRESENTE CONTRATO SEA ININTERRUMPIDO. SALVO QUE SE INDIQUE EXPRESAMENTE EN EL PRESENTE CONTRATO, HYLAND NO ASUME RESPONSABILIDAD ALGUNA CON RESPECTO AL HARDWARE, FIRMWARE, SOFTWARE O SERVICIOS DE TERCEROS.
11. RESCISIÓN.
11.1 En General. Salvo que se indique lo contrario en un Documento de Incorporación , o las partes acuerden lo contrario por escrito, el Cliente o Hyland podrán rescindir el presente Contrato, por cualquier motivo, previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
11.2 Por Cualquiera de las Partes. Cualquiera de las Partes podrá rescindir el presente Contrato en su totalidad, con efecto inmediato previa notificación por escrito a la otra Parte, si la otra Parte ha incumplido una disposición sustancial del presente Contrato y no ha subsanado el incumplimiento en un plazo de treinta (30) días a partir de la recepción de la notificación por escrito del incumplimiento enviada por la Parte que no ha incumplido; no obstante, Hyland no estará obligado a dar al Cliente ninguna oportunidad de subsanar ningún incumplimiento en el caso de cualquier Acto Prohibido, todos los cuales se consideran, a todos los efectos, disposiciones sustanciales del presente Contrato.
11.3 Rescisión del Presente Contrato. En caso de rescisión del presente Contrato, el Cliente acepta compensar a Hyland por todos los Servicios Profesionales ya prestados antes de la fecha de rescisión, incluida ésta, salvo en la medida que Hyland haya incumplido sus obligaciones de prestar dichos Servicios Profesionales y dicho incumplimiento sea la causa de la rescisión.
11.4 Efectos de la Rescisión. En caso de rescisión del presente Contrato en su totalidad (a menos que sea alegada por Hyland debido al incumplimiento del Cliente), la licencia del Cliente para utilizar los Productos de Trabajo previstos en el presente Contrato seguirá vigente de acuerdo con los términos previstos.
12. LIMITACIONES DE RESPONSABILIDAD.
12.1 NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, OMISIÓN O CUALQUIER OTRA TEORÍA LEGAL, DE NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENTE, NI DE NINGUNA PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUIDOS LAS TARIFAS DEBIDOS EN VIRTUD DEL PRESENTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REPARACIÓN DE LA COBERTURA, O DAÑOS POR INTERRUPCIÓN DEL NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE DICHOS DAÑOS, PÉRDIDAS, GASTOS O COSTES.
12.2 LA RESPONSABILIDAD TOTAL Y ACUMULATIVA DE HYLAND (INCLUIDOS SUS FILIALES Y PROVEEDORES) DERIVADA DEL PRESENTE CONTRATO, YA SEA CONTRACTUAL O EXTRACONTRACTUAL, (INCLUIDA LA NEGLIGENCIA, O CUALQUIER OTRA TEORÍA LEGAL) NO SUPERARÁ EN NINGÚN CASO LOS IMPORTES TOTALES PAGADOS REALMENTE A HYLAND POR EL CLIENTE (MENOS CUALQUIER REEMBOLSO O CRÉDITO) POR LA PRESTACIÓN DE LOS SERVICIOS QUE DEN LUGAR A LA RECLAMACIÓN DURANTE EL PERÍODO DE DOCE (12) MESES INMEDIATAMENTE ANTERIOR AL PRIMER EVENTO QUE DÉ LUGAR A DICHA RECLAMACIÓN. CON RESPECTO A CUALQUIER PRODUCTO O SERVICIO PROFESIONAL PROPORCIONADO AL CLIENTE DE FORMA GRATUITA (COMO SOFTWARE O SERVICIOS DE EVALUACIÓN), NI HYLAND NI NINGUNA DE SUS FILIALES O PROVEEDORES SERÁN RESPONSABLES DE LOS DAÑOS.
13. EXPORTACIÓN. El Software, los Productos de Trabajo o la Documentación suministrados en virtud del presente Contrato están sujetos a las leyes de control de exportaciones de los Estados Unidos y otras jurisdicciones. El Cliente se compromete a cumplir plenamente todas las leyes pertinentes de control de las exportaciones, incluidos los reglamentos del Departamento de Comercio de los Estados Unidos y todas las leyes de control de las exportaciones de los Estados Unidos, incluidos, entre otros, los Regulaciones de Administración de Exportaciones (EAR) del Departamento de Comercio de los Estados Unidos, para garantizar que el Software, los Productos de Trabajo o la Documentación no se exporten infringiendo la legislación de los Estados Unidos de América o las leyes y regulaciones de otras jurisdicciones. El Cliente acepta que no exportará ni reexportará el Software, los Productos de Trabajo o la Documentación a ninguna organización o nacional de los territorios con embargo de los Estados Unidos de América de Cuba, Irán, Corea del Norte, Sudán, Siria o cualquier otro territorio o nación con respecto a los cuales el Departamento de Comercio de los Estados Unidos de América, el Departamento de Estado de los Estados Unidos de América, el Departamento del Tesoro de los Estados Unidos de América, la U.E. y/o cualquier otro Estado nacional mantengan algún programa de sanciones por actividades comerciales. El Cliente no utilizará el Software, los Productos de Trabajo ni la Documentación para ningún uso prohibido en virtud de las leyes y normativas aplicables de los Estados Unidos de América y otras jurisdicciones, incluyendo, pero sin limitarse a, cualquier aplicación relacionada con, o con fines asociados a, la guerra nuclear, química o biológica, la tecnología de misiles (incluidos los vehículos aéreos no tripulados), la aplicación militar o cualquier otro uso prohibido o restringido en virtud de la Normativa de Administración de Exportaciones de los Estados Unidos de América (EAR) o cualquier otra ley, norma o regulación pertinente de los Estados Unidos de América y otras jurisdicciones.
14. INFORMACIÓN CONFIDENCIAL.
14.1 La "Información Confidencial" será aquella información que esté marcada como "Privada" o "Confidencial", que sea conocida por el destinatario como confidencial o que su naturaleza sea habitualmente sea confidencial entre partes comerciales, salvo lo dispuesto en la siguiente frase. La Información Confidencial no incluirá información que (a) sea o pase a ser generalmente conocida por el público sin incumplimiento del presente Contrato por parte del destinatario, o (b) el destinatario demuestre que ha estado en su posesión antes de su divulgación por la parte divulgadora, o (c) el destinatario reciba de un tercero que no esté sujeto, a conocimiento del destinatario, a restricciones, obligaciones o deberes de no divulgación a la parte divulgadora, o (d) el destinatario demuestre que ha sido desarrollada de forma independiente por el destinatario sin referencia o uso de la información de la parte divulgadora.
14.2 Cada una de las partes acuerda que, con respecto a la Información Confidencial de la otra Parte, o de sus filiales, dicha Parte, como receptora, utilizará el mismo grado de cuidado para proteger su propia Información Confidencial, pero en ningún caso menos que el cuidado razonable, y no utilizará ni revelará a terceros dicha Información Confidencial, salvo en la medida en que lo exija la ley o una orden judicial, o según lo dispuesto en el presente Contrato. El Cliente se compromete a tomar las medidas razonables para proteger todos los Productos de Trabajo e Innovaciones, así como cualquier Documentación relacionada, entregados por el Hyland al Cliente en virtud del Contrato frente a copias o usos no autorizados. Cada una de las Partes será responsable de cualquier incumplimiento de esta Sección 14 cometido por cualquiera de sus empleados, agentes, consultores, contratistas o representantes.
14.3 Las Partes reconocen que un recurso legal por incumplimiento de las disposiciones del presente Contrato relativas a la Información Confidencial y a los derechos de propiedad intelectual no será adecuado para la protección de la parte perjudicada y, en consecuencia, la parte perjudicada tendrá derecho a solicitar, además de cualquier otra reparación y recurso a su disposición, un cumplimiento específico o medidas cautelares para hacer cumplir las disposiciones del presente Contrato.
15. NO CAPTACIÓN; NO CONTRATACIÓN. Véase el Anexo A adjunto.
16. TÉRMINOS Y CONDICIONES ADICIONALES. Si Hyland es una de las compañías de Hyland que se indican a continuación, se aplicarán los términos y condiciones adicionales o alternativos establecidos en el Anexo de términos adicionales aplicable que se indica a continuación:
| Compañía de Hyland | Anexo de Términos Adicionales |
| Hyland Colombia S.A.S. | Anexo C |
| Hyland Mexico S. de R.L. de C.V. | Anexo D |
| Hyland Software, Inc., si el Cliente se localiza en Perú | Anexo E |
17. CONDICIONES GENERALES.
17.1. Fuerza Mayor. Ningún incumplimiento, retraso o falta de cumplimiento de cualquier obligación de una Parte (excepto el pago de dinero) constituirá un incumplimiento o violación en la medida en que dicho incumplimiento, retraso o falta de cumplimiento surja de una causa, existente o futura, fuera del control (incluyendo, pero no limitado a: acción o inacción de la autoridad gubernamental, civil o militar; incendio; huelga, cierre patronal u otro conflicto laboral; inundación; guerra; disturbios; robo; terremoto; desastre natural o caso fortuito; emergencias nacionales; indisponibilidad de materiales o servicios públicos; sabotaje; virus; o acto, negligencia o incumplimiento de la otra Parte) y sin negligencia o dolo de la Parte a la que se imputa el incumplimiento, retraso o incumplimiento. Cualquiera de las Partes que desee invocar alguna de las causas anteriores como excusa para el incumplimiento, la demora o el retraso en el cumplimiento deberá, cuando surja la causa, notificar a la otra Parte sin demora y por escrito los hechos que constituyen dicha causa; y, cuando la causa deje de existir, notificar este hecho sin demora a la otra Parte. La presente Sección 17.1 no limitará en modo alguno el derecho de cualquiera de las Partes a reclamar a terceros por los daños sufridos debido a dichas causas. Si cualquier fecha de cumplimiento en virtud del presente Contrato se pospone o prorroga de conformidad con la presente Sección 17.1 durante más de noventa (90) días naturales, la otra Parte, mediante notificación por escrito entregada durante el aplazamiento o la prórroga, y al menos treinta (30) días antes de la fecha efectiva de rescisión, podrá rescindir el presente Contrato.
17.2. Ley aplicable; Jurisdicción. Véase el Anexo B adjunto.
17.3 Efecto Vinculante; Cesiones. El presente Contrato será vinculante y adaptará en beneficio de las Partes y de sus respectivos sucesores y cesionarios autorizados. Ninguna de las Partes podrá ceder, transferir o sublicenciar la totalidad o parte del presente Contrato o sus derechos u obligaciones en virtud del mismo, en su totalidad o en parte, a cualquier otra persona o entidad sin el consentimiento previo por escrito de la otra Parte; siempre que dicho consentimiento no sea denegado injustificadamente en el caso de cualquier cesión o transferencia por una Parte del presente Contrato en su totalidad a la entidad superviviente de una fusión o consolidación o a cualquier comprador de sustancialmente todos los activos de dicha Parte que asuma por escrito todas las obligaciones y deberes de dicha Parte en virtud del presente Contrato. Cualquier cesión realizada sin cumplir las disposiciones de esta Sección será nula y sin efecto. No obstante cualquier disposición en contrario, Hyland puede ceder este Contrato a cualquier filial de Hyland sin el consentimiento de la otra parte mediante notificación por escrito a la otra parte. El Cliente reconoce que Hyland y/o cualquiera de sus filiales puede cumplir cualquiera de las obligaciones de Hyland contempladas en el presente Contrato.
17.4 Subcontratación. Hyland podrá subcontratar la totalidad o parte de los Servicios Profesionales, siempre que Hyland siga siendo responsable ante el Cliente de la prestación de los servicios subcontratados.
17.5 Contratista Independiente. Las Partes reconocen que Hyland es un contratista independiente y que será responsable de sus obligaciones como empleador de las personas que presten los Servicios Profesionales.
17.6 Terceros. Nada de lo aquí expresado o implícito pretende o deberá interpretarse para conferir o dar a cualquier persona o entidad, distinta de las Partes, ningún derecho o recurso en virtud del presente Contrato; sin embargo, los terceros proveedores de productos de software incluidos con el Software son terceros beneficiarios del presente Contrato en la medida en que se aplique a sus respectivos productos de software.
17.7 Integración. El presente Contrato, incluido cualquier exhibit, anexo o acuerdo adjunto al presente Contrato o al que se haga referencia en el mismo, establece la totalidad del acuerdo y entendimiento de las Partes en relación con el objeto de este y sustituye todos los acuerdos, negociaciones y discusiones anteriores entre ellas sobre el mismo objeto. Cualquier otro término que varíe o se añada a los términos de este Contrato, ya sea contenido en cualquier orden de compra u otra comunicación electrónica, escrita u oral hecha de una Parte a la otra, es rechazado y será nulo y sin fuerza o efecto a menos que se incluya en una enmienda escrita firmada mutuamente por las Partes. En la medida en que exista un conflicto entre estas Condiciones Generales y el Documento de Incorporación, prevalecerán los términos de estas Condiciones Generales.
17.8 Divisibilidad. Si alguna disposición del presente Contrato es considerada inaplicable o inválida por una autoridad competente, dicha inaplicabilidad o invalidez no hará que el presente Contrato sea inaplicable o inválido en su totalidad y, en tal caso, dicha disposición se modificará e interpretará de forma que cumpla de la mejor manera posible los objetivos de dicha disposición inaplicable o inválida dentro de los límites de la legislación aplicable o de las decisiones judiciales aplicables.
17.9 Políticas Corporativas. Hyland reconoce que el Cliente mantiene políticas corporativas que se aplican a las personas que prestarán servicios utilizando las instalaciones o el sistema del Cliente (colectivamente, las “Políticas Corporativas”). Al prestar Servicios Profesionales en virtud de este Contrato, Hyland realizará esfuerzos razonables para cumplir con las Políticas Corporativas en la medida en que dichas Políticas Corporativas sean aplicables a la prestación de dichos Servicios Profesionales, no entren en conflicto con el Contrato ni con ningún otro acuerdo relacionado vigente entre Hyland y el Cliente y se hayan facilitado a Hyland con una antelación razonable a la contratación de los Servicios Profesionales. Sin perjuicio de cualquier disposición en contrario en dichas Políticas Corporativas, si un recurso de Hyland incumple las Políticas Corporativas y dicho incumplimiento no constituye de otro modo un incumplimiento de este Contrato, el Cliente reconoce y acepta que Hyland no habrá incumplido el contrato ni será responsable de otro modo por daños y perjuicios, y como único recurso del Cliente, el Cliente podrá retirar inmediatamente de sus instalaciones el/los recurso(s) individual(es) responsable(s) del incumplimiento y exigir que dicho(s) recurso(s) individual(es) no realice(n) más Servicios Profesionales para el Cliente.
17.10 Distribuidor Autorizado. En la medida en que el Cliente sea un distribuidor autorizado de Hyland, el Documento de Incorporación haya sido suscrito por el Cliente en beneficio de un usuario final (un "Usuario Final"), y dicho Usuario Final no haya suscrito previamente un contrato independiente con Hyland que rija los Servicios Profesionales prestados en virtud del Documento de Incorporación, se aplicarán los términos de esta Sección.
El Cliente y Hyland reconocen y acuerdan que Hyland presta Servicios profesionales al Cliente en beneficio del Usuario final; por lo tanto, el Cliente (a) declara y garantiza que ha suscrito un contrato vinculante con el Usuario final en relación con el proyecto, en virtud del cual se permite al Cliente contratar a Hyland como subcontratista para prestar los Servicios profesionales contemplados en el presente Contrato; (b) acuerda que la licencia de los Productos de trabajo de la Sección 9. 2 será sublicenciada por el Cliente al Usuario Final, sujeta a las restricciones establecidas en la misma y que, aparte del derecho a sublicenciar los Productos de Trabajo, la licencia de los Productos de Trabajo no se extiende al Cliente; y (c) acepta que hará que el Usuario Final cumpla las disposiciones de este Contrato que son vinculantes para el Cliente como si el Usuario Final fuera una Parte, incluyendo facilitar la cooperación del Usuario Final según lo solicitado por Hyland para proporcionar los Servicios Profesionales y hacer que el Usuario Final cumpla las restricciones y limitaciones contenidas en el presente documento. Además, el Cliente acepta que será responsable del cumplimiento de este Contrato por parte del Usuario final y acepta expresamente indemnizar a Hyland por todas las reclamaciones, responsabilidades, pérdidas, daños y costes, incluidos los honorarios razonables de abogados y las costas judiciales, sufridos o incurridos por Hyland derivados de cualquier incumplimiento por parte del Usuario final de cualquiera de las disposiciones de este Contrato.
17. 11 El Idioma que Controla. Hyland puede poner a disposición otras versiones de estas Condiciones Generales en otros idiomas en esta ubicación en línea. Esta versión en español de estas Condiciones Generales prevalece sobre cualquier versión de estas Condiciones Generales disponible en esta ubicación en línea en otro idioma si el Documento de Incorporación está en español. Si el Documento de Incorporación está redactado en un idioma distinto del español ("Otro Idioma"), pero estas Condiciones Generales no están disponibles en esta ubicación en línea en el Otro idioma, esta versión en español prevalece sobre cualquier otra versión de las Condiciones Generales que pueda estar disponible en esta ubicación en línea en otro idioma.
Anexo A
No Captación; No Contratación
La Sección 15 del Contrato (No Captación; No Contratación) serán los términos establecidos en este Anexo A, basados en la compañía Hyland aplicable que se enumera a continuación:
“Personas Restringidas” significa cualquier persona (i) con la que la parte contratante haya tenido contacto o que haya llegado a ser conocida por la parte contratante en relación con el Contrato; y (ii) que sea o haya sido empleado de la otra parte, en cada caso en cualquier momento durante el empleo de dicha persona por la otra parte o en el plazo de un (1) año después de que dicha persona haya dejado de ser empleado de la otra parte.
Durante la vigencia de este Contrato y durante un (1) año tras la expiración o rescisión del Contrato, ni el Cliente ni Hyland podrá (salvo en la medida en que cualquiera de las partes reciba el consentimiento previo por escrito de la otra parte):
(a) solicitar empleo o contratación como contratista independiente para la parte solicitante o para cualquier otro tercero a una Persona Restringida, o animar o ayudar de cualquier otro modo a dicha Persona Restringida a abandonar el empleo de la otra parte por cualquier motivo, en cada caso en cualquier momento durante el empleo de dicha Persona Restringida por la otra parte o en el plazo de un año (1) después de que dicha persona haya dejado de ser empleada de la otra parte; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona que sea un Individuo Restringido.
(c) Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con la Sección 15(a). Las Partes acuerdan que esta disposición subsiste tras la rescisión del Contrato.
(d) La Sección 15(d) del Contrato serán los términos establecidos a continuación, basados en la compañía de Hyland aplicable que se enumera a continuación:
1. Hyland Software, Inc. Si Hyland es Hyland Software, Inc. (excepto en la medida en que el Cliente esté ubicado en Perú), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, o Hyland Poland Spolka Z.O.O., se aplicarán los siguientes términos como Sección 15(d):
Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de los abogados.
2. Hyland Software Brasil Ltda. Si Hyland es Hyland Software Brasil Ltda, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual a Ciento Noventa Mil Reales (R$190.000,00), y todos los costos asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo pero no limitado a honorarios razonables de abogados.
3. Hyland Software Germany GMBH. Si Hyland es Hyland Software Germany GMBH, se aplicarán los siguientes términos como Sección 15(d): Cada violación culpable de esta disposición por una parte da derecho a la otra a un pago por un importe igual a Cincuenta Mil Euros (50.000,00 €), y todos los costes asociados con el cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
Además, sin perjuicio de cualquier disposición en contrario en el presente documento, la subsección 15(c) anterior será modificada y sustituida en su totalidad de la siguiente manera: Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con las Secciones 15(a) y 15(b). Las Partes acuerdan que esta disposición subsistirá a la terminación del Contrato.
4. Hyland Software Mexico S. de R.L. de C.V. Si Hyland es Hyland Software Mexico S. de R.L. de C.V., los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de abogados.
5. Hyland Switzerland SARL. Si Hyland es Hyland Switzerland SARL, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra a un pago por un importe igual a Cincuenta Mil Francos Suizos (CHF50.000,00), y todos los costes asociados al cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
6. Hyland UK Operations Limited. Si Hyland es Hyland UK Operations Limited los siguientes términos se aplicarán como Sección 15(d):
7. Hyland Software Canada ULC. Si Hyland es Hyland Software Canada ULC, los siguientes términos se aplicarán como Sección 15 del Contrato (No Captación; No Contratación):
Durante la vigencia del presente Contrato, el Cliente no podrá:
(a) solicitar empleo o ser contratado como contratista independiente para sí mismo o para un tercero a una persona que sea empleado de Hyland, ni animar o ayudar de otro modo a dicha persona a abandonar el empleo de Hyland por cualquier motivo; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona: (i) con la que el Cliente haya tenido contacto o que haya llegado a ser conocida por el Cliente en relación con este Contrato; y (ii) que sea empleado de Hyland;
(c) Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del empleado inmediatamente antes de dejar el servicio de la otra parte, y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo, pero no limitado a, los honorarios razonables de abogados. Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con esta Sección 15.
Para cualquier compañía de Hyland a la que no se haga referencia en este Anexo A, no se aplicará la Sección 15 (No Captación; No Contratación).
Anexo B
Ley aplicable; Jurisdicción
La Sección 17.2 del Contrato (Ley aplicable; Jurisdicción) será la establecida en este Anexo B, basada en la compañía Hyland aplicable que se indica a continuación:
siempre y cuando, si Hyland está prestando servicios dentro de los siguientes países, los términos identificados a continuación se aplicarán en lugar de los términos anteriores:
1. Perú. El presente Contrato y cualquier reclamación, acción, pleito, procedimiento o controversia que se derive del mismo se regirán en todos los aspectos por, y se interpretarán de conformidad con, las Leyes sustantivas de la República del Perú, a excepción de los Conflictos de Leyes (y no por la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980, en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. En caso de cualquier controversia en relación con el presente Contrato, incluyendo su interpretación, validez y existencia, dicha controversia se resolverá mediante arbitraje de derecho, bajo las normas del Tribunal Arbitral de la Cámara de Comercio de Lima. El panel arbitral estará conformado por tres árbitros designados de conformidad con dicho reglamento. Cada Parte podrá designar un árbitro y los dos árbitros designados designarán un tercer árbitro que actuará como presidente del panel.
2. Singapur. El presente Contrato y cualquier reclamación, acción, litigio, procedimiento o controversia que se derive del mismo se regirá e interpretará en todos sus aspectos de conformidad con el derecho sustantivo de la República de Singapur (y no con la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980 ni con la Ley Uniforme de Transacciones Informáticas, ambas en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. Los tribunales de Singapur serán los únicos competentes para conocer de cualquier acción, litigio o procedimiento derivado del presente Contrato.
Anexo C
Anexo de Términos Adicionales para Hyland Colombia S.A.S.
Si Hyland es Hyland Colombia S.A.S., se aplicará el presente Anexo C:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo D
Anexo de Términos Adicionales para Hyland Mexico S. de R.L. de C.V.
Si Hyland es Hyland Mexico S. de R.L. de C.V., se aplicará el presente Anexo D:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en el Artículo 1916 del Código Civil Federal Mexicano.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo E
Anexo de Términos Adicionales para Hyland Software, Inc. – Perú
Si Hyland es Hyland Software, Inc., pero Hyland está prestando servicios dentro del país de Perú, se aplicará este Anexo E:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en los artículos 1984 y 1322 del Código Civil.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
(The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.)
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 7th 2023 to October 19th 2023
DownloadTable of Contents
PROFESSIONAL SERVICES TERMS AND CONDITIONS
As of the Effective Date of the Incorporating Document, these Professional Services Terms and Conditions (these “Terms and Conditions”) are part of the Incorporating Document (as defined in Section 1, below).
1. DEFINED TERMS.
“Agreement” means these Terms and Conditions, together with the Incorporating Document.
“Customer” means the entity that has entered into the Incorporating Document with Hyland. In the case that the counterparty is a certified channel partner of Hyland’s, Section 17.10 of these Terms and Conditions shall apply.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Hyland” means the Hyland company that is a party to the Incorporating Document.
“Incorporating Document” means the Services Proposal, Order Form or other agreement or document entered into between Customer and Hyland and within which these Professional Services Terms and Conditions are referenced or linked.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Hyland and Customer and each, a “Party”.
“Professional Services” means the services performed by Hyland under the Incorporating Document.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 13 or 14 of these Terms and Conditions.
“Software” means Hyland’s proprietary software product(s) or solution for which Customer has obtained a valid license from Hyland or one of its authorized channel partners.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under the Incorporating Document. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Hyland will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure, Hyland agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Incorporating Document that have been performed or developed, in whole or in part, by Hyland prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO INCORPORATING DOCUMENT. Hyland or Customer may, at any time, reasonably request a change to the Incorporating Document. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Hyland and signed by both Parties, that specifically references the Incorporating Document. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Incorporating Document, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Hyland is performing services hereunder, Customer shall provide to Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Hyland’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in the Incorporating Document: (a) Hyland will charge services fees to Customer for the Professional Services at Hyland’s then-current standard list price for the applicable Professional Services and (b) Hyland shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all invoice amounts (other than Disputed Amounts) in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Hyland for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Incorporating Document, Hyland shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Hyland issues such invoice.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS.
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Hyland or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Hyland during the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Hyland grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Hyland products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
(a) Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
(b) Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
(c) Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (i) is notified promptly after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 9.4(iv), Hyland shall remove the infringing portion of the Work Products and refund to Customer the services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Hyland to Customer; (iii) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (iv) Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS.
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 10.1 and 10.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Hyland will refund to Customer the portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY WORK PRODUCTS, INNOVATIONS, INFORMATION OR PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PROFESSIONAL SERVICES OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
11. TERMINATION.
11.1 Generally. Except as otherwise stated in an Incorporating Document, or otherwise agreed by the parties in writing, Customer or Hyland may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other Party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Hyland for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Hyland has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DAMAGES.
13. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
14. CONFIDENTIAL INFORMATION.
14.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not, to the knowledge of the recipient, bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
14.2 Each party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 14 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
14.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
15. NON-SOLICITATION; NO-HIRE. See Exhibit A attached hereto.
16. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit set forth below shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Australia Pty Ltd. Exhibit C
Hyland Software Brasil Ltda. Exhibit D
Hyland Colombia S.A.S. Exhibit E
Hyland France S.A.S. Exhibit F
Hyland Software Germany GmbH Exhibit G
Hyland Mexico S. de R.L. de C.V. Exhibit H
Hyland Software, Inc., if Customer is located in Peru Exhibit I
17. GENERAL TERMS.
17.1. Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 17.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 17.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
17.2. Governing Law; Jurisdiction. See Exhibit B attached hereto.
17.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by this Agreement.
17.4 Subcontracting. Hyland may subcontract all or any part of the Professional Services, provided, that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
17.5 Independent Contractor. The Parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
17.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
17.7 Integration. This Agreement, including any exhibit, schedule or agreement attached to this Agreement or referenced in this Agreement, sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from one Party to the other, are rejected and shall be null and void and of no force or effect unless included in a written amendment mutually signed by the Parties. To the extent there is a conflict between these Terms and Conditions and the Incorporating Document, the terms of these Terms and Conditions control.
17.8 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
17.10 Certified Channel Partner. To the extent that Customer is a certified channel partner of Hyland’s, the Incorporating Document has been entered into by Customer for the benefit of an end user (an “End User”), and such End User has not previously entered into a separate contract with Hyland that governs the Professional Services provided under the Incorporating Document, the terms of this Section shall apply.
Customer and Hyland acknowledge and agree that Hyland is providing Professional Services to Customer for the benefit of End User; therefore, Customer (a) represents and warrants that it has entered into a binding contract with End User with respect to the project, under the terms of which Customer is permitted to retain Hyland as a subcontractor to provide the Professional Services contemplated pursuant to this Agreement; (b) agrees that the license to Work Products in Section 9.2 shall be sublicensed by Customer to the End User, subject to the restrictions stated therein and that other than the right to sublicense the Work Products, the license to the Work Products does not extend to Customer; and (c) agrees that it shall cause End User to comply with the provisions of this Agreement that are binding upon Customer as if End User was a Party, including by facilitating End User’s cooperation as requested by Hyland to provide the Professional Services and causing End User to abide by the restrictions and limitations contained herein. Further, Customer agrees that it shall be responsible for compliance with this Agreement by End User and expressly agrees to indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including reasonable attorneys’ fees and court costs, suffered or incurred by Hyland arising from any breach by End User of any provisions of this Agreement.
17.11 Controlling Language. Hyland may make other versions of these Terms and Conditions available in other languages at this online location. This English language version of these Terms and Conditions controls over any version of the Terms and Conditions made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Terms and Conditions are not made available at this online location in the Other Language, this English language version controls over any other version of the Terms and Conditions that may be made available at this online location in another language.
Exhibit A
Non-Solicitation; No-Hire
Section 15 of the Agreement (Non-Solicitation; No-Hire) shall be the terms set forth on this Exhibit A, based upon the applicable Hyland company listed below:
“Restricted Individuals” means any person (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement; and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
During the term of this Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will (except to the extent either party receives the prior written consent of the other party):
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a Restricted Individual, or otherwise encourage or assist any such Restricted Individual to leave the employ of the other party for any reason, in each case at any time during such Restricted Individual’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is a Restricted Individual.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 15(a). The Parties agree that this provision survives the termination of the Agreement.
(d) Section 15(d) of the Agreement shall be the terms set forth below, based upon the applicable Hyland company listed below:
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following terms shall apply as Section 15 of the Agreement (Non-Solicitation; No-Hire):
During the term of this Agreement, Customer will not:
For any Hyland company not referenced in this Exhibit A, Section 15 (Non-Solicitation; No-Hire) shall not apply.
Exhibit B
Governing Law; Jurisdiction
Section 17.2 of the Agreement (Governing Law; Jurisdiction) shall be the terms set forth in this Exhibit B, based upon the applicable Hyland company listed below:
Exhibit C
Hyland Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., this Exhibit C shall apply:
Australian Consumer Law for Users in Australia. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
The warranties provided by Hyland in this Agreement are in addition to other rights and remedies of Customer under the Australian Consumer Law and nothing in this Agreement is intended to limit these rights and remedies which cannot be excluded under the Australian Consumer Law. The goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
If Customer believes that it has an alleged non-conformance of warranty claim, such claim needs to be made within the applicable sixty (60) day warranty period and should be made to the warranty provider, Hyland, as follows: (1) in writing to Hyland at the following address: Attn: Legal Department, Hyland Software, Inc. 28500 Clemens Road, Westlake, Ohio 44145 (USA); or (2) in writing via email to Hyland at australianconsumerlaw@hyland.com.
Customer will bear the expense of making a warranty claim under the terms set forth on this Exhibit C.
If the purchase of the goods by Customer does not fall under the Australian Consumer Law, this Exhibit C shall not apply and the warranty and disclaimer otherwise stated in this Agreement shall control.
Exhibit D
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA, this Exhibit D shall apply:
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S. this Exhibit F shall apply:
12.3 The Parties acknowledge that these limitations and exclusions of Hyland’s liability reflect the allocation of risk under the Agreement and the economical balance required by the Parties, that the Agreement would not have been entered into without these limitations and exclusions, and that these limitations and exclusions shall remain in effect even in the event of termination or rescission of the Agreement.
Exclusion of Unforeseeability: The Parties declare that they measure and accept the risks inherent to the performance of the Agreement. By express agreement, the Parties waive the application of the provisions of article 1195 of the French Civil code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2. Section 9.2 of the Agreement shall be replaced in its entirety as follows:
Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompiling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
10.1 Limited Warranty for Professional Services. Hyland will perform the Professional Services in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes (a) non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement; and (b) any Professional Services in the nature of staff augmentation.
10.2 Limited Warranty for Work Products. For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
10.3 Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Agreement with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of this Agreement.
10.4 Disclaimer of Warranties. Section 10.4 is restated herein and tThe following is added to Section 10.4: Statutory warranty rights of the Customer shall remain unaffected.
10.5 The following is added as an additional Section 10.5:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by this Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THIS AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
If Hyland is Hyland Mexico S. de R.L. de C.V., this Exhibit H shall apply:
For purposes of this Section 12.1, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
If Hyland is Hyland Software, Inc., but Hyland is providing services within the country of Peru, this Exhibit I shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section 12.1, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 7th 2023 to October 19th 2023
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GESCHÄFTSBEDINGUNGEN FÜR PROFESSIONELLE DIENSTLEISTUNGEN
Ab dem Datum des Inkrafttretens des Vertragsdokuments sind diese Geschäftsbedingungen für Professionelle Dienstleistungen („Geschäftsbedingungen“) Teil des Vertragsdokuments (wie nachfolgend im Abschnitt 1 definiert).
„Arbeitsergebnisse“ bezeichnet alle Elemente in Form von Computersoftware, einschließlich Quellcode, Objektcode, Skripten und allen Komponenten oder Elementen des Vorstehenden oder Elemente, die mit den Konfigurationstools der Software erstellt wurden, sowie alle Konstruktionsdokumente im Zusammenhang mit Gegenständen in Form von Computersoftware, die jeweils von Hyland erstellt, entwickelt, entdeckt, konzipiert oder eingeführt werden und entweder allein oder in Verbindung mit anderen bei der Erbringung von Dienstleistungen im Rahmen dieser Vereinbarung funktionieren. Falls zutreffend, umfasst der Begriff „Arbeitsergebnisse“ vorkonfigurierte Vorlagen oder VBScripts, die von Hyland im Rahmen der Konfiguration des Vorauserfassungsmoduls der Software erstellt oder anderweitig bereitgestellt wurden.
„Arbeitsstunde“ bezeichnet die Dienste einer (1) Person für einen Zeitraum von einer (1) Stunde (oder eines Teils davon) während der regulären Geschäftszeiten.
„Bestrittene Beträge“ bezeichnet die Beträge auf einer Rechnung, für die der Kund Hyland vor dem Fälligkeitsdatum der Rechnung eine schriftliche Mitteilung zukommen lässt, in der sie ihre Einwände gegen die Zahlung dieser Beträge darlegt.
„Dokumentation“ bedeutet: (1) soweit verfügbar, die in der Software enthaltenen „Hilfedateien“ oder (2), falls in der Software keine solchen „Hilfedateien“ enthalten sind, eine andere von Hyland veröffentlichte Dokumentation, die sich auf die Funktions-, Betriebs- oder Leistungsmerkmale der Software bezieht.
"Hyland“ bedeutet die Hyland Gesellschaft, die Vertragspartei des Vertragsdokuments ist.
„Kunde“ bezeichnet das Unternehmen, welches das Vertragsdokument mit Hyland abgeschlossen hat. Falls es sich bei der Vertragspartei um einen zertifizierten Vertriebspartner von Hyland handelt, gilt Abschnitt 17.10 dieser Geschäftsbedingungen.
„Parteien“ bedeutet Hyland und Kunde gemeinsam (jeweils einzeln „Partei“)
„Professionelle Dienstleistungen“ bezeichnet alle Dienstleistungen, die von Hyland in Erfüllung eines Vertragsdokuments erbracht werden.
„Software“ bedeutet Hylands eigene Softwareprodukte oder Lösungen, für die der Kunde eine gültige Lizenz von Hyland oder einem autorisierten Vertriebspartner von Hyland erworben hat.
„Spezifikationen“ bezeichnet die endgültigen Funktionsspezifikationen für Arbeitsergebnisse, sofern vorhanden, die von Hyland im Rahmen eines Vertragsdokuments erstellt wurden. Spezifikationen gelten bei Arbeitsergebnissen als Dokumentation im Sinne dieser Vereinbarung.
„Verbotene Handlung“ bedeutet: (a) das Entfernen von Urheberrechts-, Marken- oder andere Schutzrechtshinweisen, die auf oder während der Verwendung der Software, der Arbeitsergebnisse oder der Dokumentation erscheinen; (b) der Verkauf, die Übertragung, die Vermietung, das Leasing oder die Unterlizenzierung der Software, der Arbeitsergebnisse oder der Dokumentation and Dritte; (c) sofern dies nicht ausdrücklich in Bezug auf Software oder Arbeitsergebnisse gestattet ist, die Abänderung oder die Modifikation der Software, der Arbeitsergebnisse oder der Dokumentation; (d) das Reverse-Engineering, das Disassemblieren, das Dekompilieren, der Versuch, den Quell-Code abzuleiten, oder Anfertigung von abgeleiteten Werken und zwar in Bezug auf die Software, die Arbeitsergebnisse oder die Dokumentation; oder (e) der Verstoß gegen die Bestimmungen der Abschnitte 9, 13 oder 14 dieser Geschäftsbedingungen.
„Vereinbarung“ bedeutet diese Geschäftsbedingungen gemeinsam mit dem Vertragsdokument.
„Vertragsdokument“ bezeichnet das Leistungsangebot, das Bestellformular oder eine andere zwischen dem Kunden und Hyland geschlossene Vereinbarung oder Dokument, in der/dem auf diese Geschäftsbedingungen für Professionelle Dienstleistungen verwiesen wird oder diese Geschäftsbedingungen verlinkt sind.
2. AUSFÜHRUNG. Hyland wird die in dieser Vereinbarung beschriebenen Professionellen Dienstleistungen wie in dieser Vereinbarung enthalten oder wie zu einem von den Parteien einvernehmlich und schriftlich gesondert festgelegten Zeitpunkt und Zeitplan ausführen. Wenn Verzögerungen bei der Ausführung solcher Professionellen Dienstleistungen ausschließlich auf falsche Informationen, falsche Annahmen oder Nichterfüllung der Verpflichtungen des Kunden im Zusammenhang mit dieser Vereinbarung zurückzuführen sind, kann der Terminplan für das betreffende Projekt verlängert werden. Hyland übernimmt keine Haftung oder Verantwortung für Kosten oder Aufwendungen, die sich aus solchen Verzögerungen ergeben. Für den Fall, dass die Erfüllung eines in dieser Vereinbarung festgelegten Meilensteins aufgrund einer Verzögerung, die ausschließlich von Hyland verursacht wurde, nicht erreicht wird und sofern dieser Grund kein Ereignis höherer Gewalt ist, stimmt Hyland zu, ohne zusätzliche Kosten für den Kunden, die zusätzlichen Ressourcen und das Personal bereitzustellen, welche erforderlich sind, um sicherzustellen, dass eine solche Verzögerung nicht zu Verzögerungen späterer Meilensteine oder des Abschlusses der Professionellen Dienstleistungen führt. Die Parteien vereinbaren, dass alle in dem Vertragsdokument genannten Professionellen Dienstleistungen oder Arbeitsergebnisse, die vor der Unterschrift dieser Vereinbarung durch die Parteien ganz oder teilweise erbracht oder entwickelt wurden, dennoch allen Bestimmungen und Bedingungen dieser Vereinbarung unterfallen.
3. ÄNDERUNGEN DES VERTRAGSDOKUMENTS. Jede Partei ist jederzeit berechtigt, eine angemessene Änderung eines Vertragsdokuments zu beantragen. Jede angeforderte Änderung, die die Parteien gegenseitig akzeptieren (eine „Änderung“), wird in einem schriftlichen Änderungsauftrag aufgeführt, der von Hyland erstellt und von beiden Parteien vereinbart und unterzeichnet wird, wobei ausdrücklich auf das entsprechende Vertragsdokument verwiesen wird. Falls sich die Parteien nicht auf eine vorgeschlagene Änderung oder einen vorgeschlagenen Änderungsauftrag einigen können und sich diese vorgeschlagene Änderung auf eine wesentliche Komponente des Projekts bezieht, die Gegenstand des entsprechenden Vertragsdokuments ist, kann jede Partei diese Vereinbarung mit einer Frist von mindestens dreißig (30) Tagen im Voraus durch schriftliche Mitteilung an die andere Partei kündigen.
4. VERPFLICHTUNGEN DES KUNDEN.
4.1 Unterstützung und Verpflichtungen. Der Kunde erklärt sich damit einverstanden, mit Hyland bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung zusammenzuarbeiten und Hyland zu unterstützen, die in dieser Vereinbarung angegebenen Ressourcen bereitzustellen und alle Verpflichtungen zu erfüllen, die der Kunde gemäß den Bestimmungen dieser Vereinbarung erfüllen muss. Während eines Zeitraums, in dem Hyland Professionelle Dienstleistungen im Rahmen dieser Vereinbarung erbringt, muss der Kunde dem Hyland-Projektteam einen unabhängigen lokalen (vor Ort) und Remote-Zugriff (außerhalb des Standorts) gewähren und zwar über sichere Verbindungen, wie etwa eine Netzwerkverbindung, eine VPN-Verbindung oder andere ähnliche Methoden, sowie spezieller Benutzerkonten mit entsprechenden Berechtigungen für die entsprechende Software, Hardware oder virtueller Maschinen, die dem entsprechenden Softwaresystem zugeordnet sind. Remote- und lokaler Zugriff wird für alle bereitgestellten Umgebungen, einschließlich der Produktionsumgebung, gewährt. Der Kunde nimmt zur Kenntnis, dass die Fähigkeit von Hyland, die Professionellen Dienstleistungen zu erbringen, den festgelegten Leistungsplan einzuhalten und die Dienstleistungsgebühren in angemessener Weise mit den in dieser Vereinbarung angegebenen Schätzungen in Übereinstimmung zu bringen, beeinträchtigt werden kann, wenn der Kunde es versäumt, Unterstützung zu leisten und seine Verpflichtungen aus dieser Vereinbarung zu erfüllen.
4.2 Drittsoftware Nutzungsrechte. Ungeachtet gegenteiliger Bestimmungen und sofern der Kunde Hyland auffordert, Professionelle Dienstleistungen für oder in Bezug auf Software von Drittanbietern zu erbringen, sichert der Kunde gegenüber Hyland zu, dass er alle erforderlichen Nutzungsrechte an Drittsoftware hat, um dies Hyland zu ermöglichen.
4.3 Schutz der Kundensysteme. Sofern es sich nicht um eine von Hyland gehostete Lösung handelt, erklärt sich der Kunde damit einverstanden, dass er allein dafür verantwortlich ist, geeignete Maßnahmen zu ergreifen, um seine Computersysteme zu isolieren und zu sichern oder anderweitig zu archivieren, einschließlich seiner Computer Programme, Daten und Dateien.
4.4 Sichere Arbeitsumgebung. Der Kunde ist dafür verantwortlich und stellt sicher, dass alle angemessenen und rechtlichen Gesundheits- und Sicherheitsvorkehrungen getroffen wurden und voll funktionsfähig sind, um Hyland-Mitarbeiter, Vertreter oder Subunternehmer während des Aufenthalts beim Kunden zu schützen.
5. DIENSTLEISTUNGSGEBÜHREN. Sofern in dem jeweiligen Vertragsdokument nicht anderweitig vereinbart: (a) berechnet Hyland dem Kunden Dienstleistungsgebühren für Professionelle Dienstleistungen zum jeweils aktuellen Standard-Listenpreis von Hyland für die entsprechenden Professionellen Dienstleistungen und (b) stellt Hyland dem Kunden monatlich nachträglich Gebühren für Professionelle Dienstleistungen in Rechnung, basierend auf der Anzahl der für die Fertigstellung des Projekts erforderlichen Arbeitsstunden und den geltenden Stundengebühren. Der Kunde ist verpflichtet, alle Rechnungsbeträge (mit Ausnahme von Bestrittenen Beträgen) innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen. Alle Schätzungen der Gebühren oder Arbeitsstunden, die für die Fertigstellung des Projekts erforderlich sind, sind ungefähre Angaben zu der voraussichtlichen Höhe der Gebühren und der Zeit, die für die Fertigstellung des Projekts erforderlich sind. Die tatsächliche Anzahl der Arbeitsstunden kann variieren.
6. REISEKOSTEN UND SPESEN. Alle üblichen und angemessenen Auslagen und Kosten, die Hyland im Zusammenhang mit der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung entstehen (einschließlich Gebühren und Kosten für Reisen, Mahlzeiten, Unterkunft und Registrierungsanforderungen für Drittanbieter) gemäß den geltenden internen Richtlinien von Hyland für die Erstattung von Kosten und Aufwendungen an seine Mitarbeiter, sind Hyland gegenüber zu erstatten. Sofern in einem entsprechenden Vertragsdokument nichts anderes vereinbart ist, stellt Hyland dem Kunden alle erstattungsfähigen Kosten und Aufwendungen monatlich nachträglich in Rechnung und der Kunde hat die Rechnung innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen.
8. STEUERN UND STAATLICHE ABGABEN.Alle Zahlungen im Rahmen dieser Vereinbarung verstehen sich exklusive aller anfallenden Steuern und staatlichen Abgaben (z. B. Zölle), die alle vom Kunden zu zahlen sind (mit Ausnahme der Steuern auf das Einkommen von Hyland). Für den Fall, dass der Kunde gesetzlich verpflichtet ist, Steuern einzubehalten, verpflichtet sich der Kunde, Hyland alle erforderlichen Belege und Unterlagen vorzulegen, die eine solche Zahlung belegen. Falls Hyland gesetzlich verpflichtet ist, Steuern oder staatliche Abgaben im Namen oder auf Rechnung des Kunden abzuführen, verpflichtet sich der Kunde, Hyland innerhalb von dreißig (30) Tagen nach Erhalt einer entsprechenden schriftlichen Benachrichtigung entsprechend zu entschädigen. Der Kunde erklärt sich damit einverstanden, Hyland vor jeder Überweisung, die Hyland im Namen oder auf Rechnung des Kunden vornehmen muss, gültige Steuerbefreiungsbescheinigungen vorzulegen, sofern diese Bescheinigungen erforderlich sind.
9. ARBEITSERGEBNISSE.
9.2 Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
9.3 Änderung von Arbeitsergebnissen.
(a) Form der gelieferten Arbeitsprodukte. Die Form, in der Hyland Arbeitsergebnisse liefert, wird von Hyland in Abhängigkeit vom Zweck und der Funktionalität des Arbeitsergebnisses festgelegt.
(b) Konfigurierte Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert: (a) in Form von (i) Quellcode, der von Tools in der Software in Maschinensprache kompiliert wird; oder (ii) einem Skript; oder (b) welches unter Verwendung der Konfigurations-Tools in der Software erstellt wird (ein „Konfiguriertes Arbeitsergebnis“), gewährt Hyland dem Kunden das beschränkte Recht, das Konfigurierte Arbeitsergebnis zu modifizieren, vorausgesetzt, ein solches modifiziertes Konfiguriertes Arbeitsergebnis wird nur in Übereinstimmung mit den Bedingungen der beschränkten Lizenz für ein solches Arbeitsergebnis verwendet, die gemäß diesem Abschnitt gewährt wird.
(c) Unabhängige Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert, bei dem es sich nicht um ein Konfiguriertes Arbeitsergebnis handelt (ein „Unabhängiges Arbeitsergebnis“), darf der Kunde dieses Unabhängige Arbeitsergebnis nicht verändern oder modifizieren, es sei denn, der letzte Satz dieses Abschnittes sieht etwas anderes vor. Wenn Hyland ein Unabhängiges Arbeitsergebnis liefert und der Kunde das Recht zur Modifizierung des Unabhängigen Arbeitsergebnisses erhalten möchte, können die Parteien einvernehmlich vereinbaren, dass Hyland dem Kunden eine Kopie des Formats des Unabhängigen Arbeitsergebnisses liefert, das zur Modifizierung des Unabhängigen Arbeitsergebnisses erforderlich ist, vorbehaltlich und nach Zahlung der zusätzlichen Dienstleistungsgebühren durch den Kunden an Hyland, die Hyland möglicherweise für die Erstellung und Lieferung eines solchen Formats berechnen kann. In diesem Fall gewährt Hyland dem Kunden das Recht, das gelieferte Format des Unabhängigen Arbeitsergebnisses zu modifizieren und gegebenenfalls zu kompilieren, vorausgesetzt, dass das modifizierte Unabhängige Arbeitsergebnis nur in Übereinstimmung mit den Bedingungen der gemäß diesem Abschnitt gewährten beschränkten Lizenz für dieses gewährte Arbeitsergebnis verwendet wird.
9.4 Entschädigung für die Verletzungen gewerblicher Schutzrechte durch Arbeitsergebnisse. Hyland erklärt sich damit einverstanden, den Kunden von jeglicher Haftung und allen Kosten, einschließlich angemessener Anwaltskosten, freizustellen, die sich aus oder im Zusammenhang mit Ansprüchen, Handlungen oder Verfahren Dritter ergeben, die gegen den Kunden aufgrund einer Verletzung oder widerrechtlichen Aneignung eines Patents, eines eingetragenen Urheberrechts oder einer eingetragenen Marke eines Dritten, durch die Arbeitsergebnisse erhoben werden, vorausgesetzt, dass Hyland: (i) sofort benachrichtigt wird, nachdem der Kunde über einen solchen Anspruch informiert wurde; (ii) die alleinige Verantwortung für die Verteidigung und etwaige Vergleichsverhandlungen in Bezug auf einen solchen Anspruch trägt (vorausgesetzt, dass Hyland einen solchen Anspruch nicht ohne die vorherige schriftliche Zustimmung des Kunden vergleicht, wenn ein solcher Vergleich eine Vereinbarung oder ein Eingeständnis oder eine Anerkennung einer Haftung oder eines Fehlverhaltens seitens des Kunden enthält oder anderweitig eine Zahlung durch den Kunden erfordert); (ii) die angemessene Kooperation des Kunden bei der Verteidigung oder Beilegung eines solchen Anspruchs erhält; und (iv) das Recht hat, beim Eintreten oder bei der Wahrscheinlichkeit (nach Ansicht von Hyland) eines Verstoßes oder einer widerrechtlichen Aneignung entweder dem Kunden das Recht zur weiteren Nutzung der Arbeitsergebnisse zu verschaffen, oder die betreffenden Teile der Arbeitsergebnisse durch andere gleichwertige, nicht rechtsverletzende Teile zu ersetzen.
10. BESCHRÄNKTE GEWÄHRLEISTUNG FÜR DIENSTLEISTUNGEN UND ARBEITSERGEBNISSE
10.1 Beschränkte Gewährleistungen für Professionelle Dienstleistungen. Für einen Zeitraum von sechzig (60) Tagen ab dem Datum des Abschlusses der Professionellen Dienstleistungen gewährleistet Hyland gegenüber dem Kunden, dass diese Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus, die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von sechzig (60) Tagen ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnis, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
10.3 Abhilfe. Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß der Abschnitte 10.1 und 10.2 lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Frist von sechsig (60) Tagen schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder angemessene Anstrengungen unternehmen, um die nicht konformen Professionellen Dienstleistungen erneut auszuführen und versuchen, die fehlerhaften Professionellen Dienstleistungen zu korrigieren. Im Falle der Nichtkonformität eines Arbeitsproduktes wird Hyland das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann.
Sofern Hyland feststellt, dass eine Behebung der Nichtkonformität nach angemessener Zeit nicht möglich ist oder dass Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, besteht das einzige Recht des Kunden in Kündigung dieser Vereinbarung. In diesem Fall erstattet Hyland dem Kunden den Teil der vor der Kündigung in Bezug auf die Erstellung und Implementierung eines solchen nichtkonformen Arbeitsergebnisses oder der nichtkonformen Professionellen Dienstleistungen bezahlten Dienstleistungsgebühren.
10.4 Gewährleistungsausschluss. MIT AUSNAHME DER VORSTEHENDEN AUSDRÜCKLICHEN BESTIMMUNGEN GEBEN HYLAND UND SEINE LIEFERANTEN KEINE GARANTIEN, ZUSICHERUNGEN ODER GEWÄHRLEISTUNGEN IN BEZUG AUF ARBEITSERGEBNISSE, INNOVATIONEN, INFORMATIONEN ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN. HYLAND UND SEINE LIEFERANTEN LEHNEN ALLE ANDEREN AUSDRÜCKLICHEN, STILLSCHWEIGENDEN UND GESETZLICHEN GARANTIEN ODER GEWÄHRLEISTUNGEN AB UND SCHLIESSEN DIESE AUS, EINSCHLIESSLICH, ABER NICHT BESCHRÄNKT AUF GARANTIEN/GEWÄHRLEISTUNGEN GEGEN RECHTSVERLETZUNGEN, DIE STILLSCHWEIGENDE GARANTIE/GEWÄHRLEISTUNGEN DER MARKTGÄNGIGKEIT UND DER EIGNUNG FÜR EINEN BESTIMMTEN ZWECK SOWIE GARANTIEN/GEWÄHRLEISTUNG, DIE SICH AUS DEM VERLAUF DER LEISTUNG, DEM HANDELSBRAUCH ODER DER HANDELSGEWOHNHEIT ERGEBEN ODER ALS SOLCHE ANGESEHEN WERDEN KÖNNEN. HYLAND UND SEINE LIEFERANTEN GARANTIEREN UND GEWÄHRLEISTEN NICHT, DASS DIE ERBRACHTEN PROFESSIONELLEN DIENSTLEISTUNGEN ODER ARBEITSERGEBNISSE DEN ANFORDERUNGEN DES KUNDEN ENTSPRECHEN ODER FEHLERFREI SIND ODER DASS DER BETRIEB DER SOFTWARE ODER DER ARBEITSERGEBNISSE, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN, NICHT UNTERBROCHEN WIRD. SOFERN NICHT AUSDRÜCKLICH IN DIESER VEREINBARUNG ANGEGEBEN, ÜBERNIMMT HYLAND KEINERLEI HAFTUNG IN BEZUG AUF HARDWARE, FIRMWARE, SOFTWARE ODER DIENSTLEISTUNGEN VON DRITTEN.
11. KÜNDIGUNG.
11.1 Allgemein. Sofern nicht im Vertragsdokument oder anderweitig zwischen den Parteien schriftlich vereinbart, können der Kunde oder Hyland diese Vereinbarung aus beliebigen Gründen mit einer Frist von mindestens dreißig (30) Tagen schriftlich kündigen.
11.2 Kündigung durch eine der Parteien. Jede Partei kann diese Vereinbarung mit sofortiger Wirkung nach schriftlicher Mitteilung an die jeweils andere Partei in ihrer Gesamtheit kündigen, wenn die jeweils andere Partei gegen eine wesentliche Bestimmung diese Vereinbarung verstoßen hat und den Verstoß nicht innerhalb von dreißig (30) Tagen nach Erhalt der schriftlichen Mitteilung des Verstoßes durch die nicht verletzende Partei behoben hat; vorausgesetzt, dass Hyland nicht verpflichtet ist, dem Kunden die Möglichkeit zu geben, einen Verstoß im Falle einer Verbotenen Handlung zu beheben, die für alle Zwecke als wesentliche Bestimmungen dieser Vereinbarung betrachtet werden.
11.3 Kündigung dieser Vereinbarung. Im Falle jeder Kündigung dieser Vereinbarung ist der Kunde verpflichtet, alle Dienstleistungsgebühren, die sich auf von Hyland vor Wirksamkeit der Kündigung erbrachten Professionellen Dienstleistungen beziehen zu entrichten. Dies gilt nicht, sofern Hyland gegen eine Verpflichtung zur Erbringung von Professionellen Dienstleistung verstoßen hat und dieser Verstoß den Kündigungsgrund darstellt.
11.4 Auswirkungen der Kündigung. Bei jeder Beendigung dieser Vereinbarung (außer durch Hyland aufgrund eines Verstoßes des Kunden) bleibt die Lizenz des Kunden zur Nutzung der in dieser Vereinbarung enthaltenen Arbeitsergebnisse gemäß ihren Bedingungen bestehen.
12. HAFTUNGSBESCHRÄNKUNG.
12.1 WEDER DIE PARTEIEN NOCH IHRE VERBUNDENEN UNTERNEHMEN (UND IM FALLE VON HYLAND HYLAND’S LIEFERANTEN) SIND HAFTBAR, SEI ES AUFGRUND EINES VERTRAGS, EINER UNERLAUBTEN HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER EINES ANDEREN RECHTLICHEN GRUNDES FÜR INDIREKTE, ZUFÄLLIGE, BESONDERE ODER FOLGESCHÄDEN ODER FÜR ENTGANGENE EINNAHMEN, REPUTATION, EINSPARUNGEN ODER GEWINNE (MIT AUSNAHME DER IM RAHMEN DIESER VEREINBARUNG FÄLLIGEN GEBÜHREN), VERLUST ODER BESCHÄDIGUNG VON DATEN ODER PROGRAMMEN, KOSTEN FÜR ERSATZ ODER DIE BEHEBUNG VON SCHÄDEN ODER GESCHÄFTSUNTERBRECHUNGEN, SELBST WENN SIE AUF DIE MÖGLICHKEIT SOLCHER SCHÄDEN, VERLUSTE, AUSGABEN ODER KOSTEN HINGEWIESEN WURDEN.
12.2 DIE GESAMTE, KUMULATIVE HAFTUNG VON HYLAND (EINSCHLIESSLICH VERBUNDENEN UNTERNEHMEN UND LIEFERANTEN), DIE SICH AUS DIESER VEREINBARUNG ERGIBT, SEI ES AUS VERTRAG ODER UNERLAUBTER HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER AUS EINES ANDEREN RECHTLICHEN GRUNDES, ÜBERSTEIGT IN KEINEM FALL DEN GESAMTBETRAG, DEN DER KUNDE AN HYLAND FÜR DIE ERBRINGUNG DER DIENSTLEISTUNGEN, DIE DEN ANSPRUCH BEGRÜNDEN, INNERHALB DES ZWÖLF (12) MONATSZEITRAUMS, DER DEM ERSTEN ANSPRUCH BEGRÜNDENDEN EREIGNIS UNMITTELBAR VORAUSGEHT, TATSÄCHLICH GEZAHLT HAT (ABZÜGLICH ETWAIGER RÜCKERSTATTUNGEN ODER GUTSCHRIFTEN). IN BEZUG AUF PRODUKTE ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE DEM KUNDEN KOSTENLOS ZUR VERFÜGUNG GESTELLT WURDEN (WIE Z.B. EVALUIERUNGSSOFTWARE ODER -DIENSTLEISTUNGEN), HAFTEN WEDER HYLAND NOCH SEINE VERBUNDENEN UNTERNEHMEN ODER LIEFERANTEN FÜR SCHÄDEN.
13. EXPORT. Alle im Rahmen dieser Vereinbarung bereitgestellte Software, Arbeitsergebnisse oder Dokumentation, unterliegen den Exportkontrollgesetzen und -bestimmungen der Vereinigten Staaten und anderer Rechtsordnungen. Der Kunde verpflichtet sich, alle relevanten Exportkontrollgesetze und -bestimmungen, einschließlich der Bestimmungen des US-Handelsministeriums und aller US-Exportkontrollgesetze, einschließlich, aber nicht beschränkt auf die Exportverwaltungsbestimmungen des US-Handelsministeriums (EAR), vollständig einzuhalten, um sicherzustellen, dass die Software, die Arbeitsergebnisse oder die Dokumentation nicht unter Verstoß gegen die Gesetze der Vereinigten Staaten von Amerika oder die Gesetze und Vorschriften anderer Rechtsordnungen exportiert werden. Der Kunde verpflichtet sich, die Software, die Arbeitsergebnisse oder die Dokumentation nicht an Organisationen oder Staatsangehörige in den mit einem Embargo der Vereinigten Staaten belegten Gebieten wie Kuba, Iran, Nordkorea, Sudan, Syrien oder einem anderen Gebiet oder einer anderen Nation, für die das US-Handelsministerium, das US-Außenministerium, das US-Finanzministerium, die EU und/oder etwaige weitere Nationen ein Sanktionsprogramm für kommerzielle Aktivitäten unterhält, zu exportieren oder zu re-exportieren. Der Kunde darf die Software, die Arbeitsergebnisse oder die Dokumentation nicht für, gemäß den geltenden Gesetzen und Vorschriften der USA und anderer Gerichtsbarkeiten, verbotene Endanwendungen verwenden, einschließlich, aber nicht beschränkt auf Anwendungen im Zusammenhang mit nuklearer, chemischer oder biologischer Kriegsführung, Raketentechnologie (einschließlich unbemannter Luftfahrzeuge), militärischen Anwendungen oder nach den US Export Administration Regulations (EAR) oder anderen einschlägigen Gesetzen, Regeln oder Vorschriften der Vereinigten Staaten von Amerika und anderer Rechtsordnungen verbotenen oder eingeschränkten Verwendungen.
14. VERTRAULICHE INFORMATIONEN.
14.1 „Vertrauliche Informationen“ sind alle Informationen, die mit "proprietär" oder "vertraulich" gekennzeichnet sind, von denen die empfangende Partei weiß, dass sie vertraulich sind, oder die so beschaffen sind, dass sie üblicherweise zwischen Geschäftspartnern vertraulich sind, es sei denn, es gelten die Bestimmungen des nächsten Satzes. Zu den Vertraulichen Informationen gehören nicht Informationen: (a) die der Öffentlichkeit allgemein bekannt sind oder werden, ohne dass die empfangende Partei gegen diese Vereinbarung verstoßen hat, (b) in Bezug auf die die empfangende Partei nachweist, dass sie sich vor ihrer Offenlegung durch die offenlegende Partei im Besitz der empfangenden Partei befanden, (c) die die empfangende Partei von einem Dritten erhält, der gegenüber der offenlegenden Partei nicht durch Beschränkungen, Verpflichtungen oder Geheimhaltungspflichten gebunden ist, oder (d) in Bezug auf die die empfangende Partei nachweist, dass sie sie unabhängig und ohne Bezugnahme auf die Informationen der jeweils anderen Partei entwickelt hat.
14.3 Die Parteien erkennen an, dass ein Rechtsbehelf bei einem Verstoß gegen die Bestimmungen dieser Vereinbarung in Bezug auf Vertrauliche Informationen und Rechte an geistigem Eigentum nicht ausreicht, um die geschädigte Partei zu schützen, und dass die geschädigte Partei dementsprechend das Recht hat, zusätzlich zu allen anderen ihr zur Verfügung stehenden Rechtsbehelfen und Rechtsmitteln eine bestimmte Leistung oder einen Unterlassungsanspruch zu verlangen, um die Bestimmungen dieser Vereinbarung durchzusetzen.
15. ABWERBEVERBOT. EINSTELLUNGSVERBOT. Siehe Anlage A zu dieser Vereinbarung.
16. ZUSATZBESTIMMUNGEN. Wenn es sich bei Hyland um ein unten aufgeführtes Hyland-Unternehmen handelt, gelten die zusätzlichen oder alternativen Bedingungen, die in der unten aufgeführten Anlage – Zusatzbestimmungen aufgeführt sind:
Hyland-Unternehmen Zusatzbestimmungen
Hyland Software Germany GmbH Anlage C
17. ALLGEMEINE BESTIMMUNGEN
17.1 Höhere Gewalt. Ein Versäumnis, eine Verzögerung oder die Nichterfüllung einer Verpflichtung durch eine Partei (mit Ausnahme der Zahlung von Geldern) stellt keine Nichterfüllung oder Verletzung dar, soweit ein solches Versäumnis, eine solche Verspätung oder eine solche Nichterfüllung auf eine bestehende oder zukünftige Ursache zurückzuführen ist, die außerhalb der Kontrolle (einschließlich, aber nicht beschränkt auf: Maßnahmen oder Untätigkeit von Regierungs-, Zivil- oder Militärbehörden; Feuer; Streik, Aussperrung oder andere Arbeitskämpfe; Flut; Krieg; Aufruhr; Diebstahl; Erdbeben; Naturkatastrophe oder höhere Gewalt; Pandemien, Epidemien, nationale Notfälle, Nichtverfügbarkeit von Materialien oder Versorgungsunternehmen, Sabotage, Viren oder die Handlung, Fahrlässigkeit oder Versäumnis der anderen Partei) und außerhalb von Fahrlässigkeit oder vorsätzlichem Fehlverhalten der Partei liegt, der die Verzögerung oder Nichterfüllung sonst zur Last gelegt würde. Jede Partei, die sich auf eine der vorstehenden Ausführungen als Entschuldigung für die Nichterfüllung, den Verzug oder die verspätete Erfüllung berufen möchte, muss die andere Partei, sobald der Grund vorliegt, unverzüglich schriftlich über die Tatsachen informieren, die einen solchen Grund darstellen und wenn die Ursache nicht mehr besteht, dies der anderen Partei unverzüglich mitzuteilen. Dieser Abschnitt 17.1 schränkt in keiner Weise das Recht einer Partei ein, Ansprüche gegen Dritte wegen Schäden geltend zu machen, die aus diesen Gründen entstanden sind. Wenn ein Leistungstermin einer Partei im Rahmen dieser Vereinbarung gemäß diesem Abschnitt 17.1 um mehr als neunzig (90) Kalendertage verschoben oder verlängert wird, kann die andere Partei durch schriftliche Mitteilung während der Verschiebung oder Verlängerung und mindestens dreißig (30) Tage vor dem Datum des Inkrafttretens der Kündigung diese Vereinbarung kündigen.
17.2 Anwendbares Recht und Gerichtsstand. Siehe Anlage B zu dieser Vereinbarung.
17.3 Bindungswirkung; Abtretung. Diese Vereinbarung ist für die Parteien und ihre jeweiligen Rechtsnachfolger und zugelassenen Abtretungsempfänger bindend und kommt diesen zugute. Keine Partei darf diese Vereinbarung oder ihre Rechte oder Pflichten aus dieser Vereinbarung ganz oder teilweise an eine andere natürliche oder juristische Person ohne vorherige schriftliche Zustimmung der anderen Partei abtreten, übertragen oder unterlizenzieren, immer vorausgesetzt, dass eine solche Zustimmung nicht unbillig verweigert werden darf, wenn eine Partei diese Vereinbarung in ihrer Gesamtheit an den überlebenden Rechtsträger einer Fusion oder Konsolidierung oder an einen Käufer von im Wesentlichen allen Vermögenswerten dieser Partei überträgt, der alle Verpflichtungen dieser Partei aus dieser Vereinbarung schriftlich übernimmt. Jede Abtretung, die ohne Einhaltung der Bestimmungen dieses Abschnitts erfolgt, ist nichtig. Ungeachtet gegenteiliger Bestimmungen kann Hyland diese Vereinbarung ohne Zustimmung der anderen Partei durch schriftliche Mitteilung an die andere Partei an ein mit Hyland verbundenes Unternehmen abtreten. Der Kunde erkennt an, dass Hyland ein mit Hyland verbundenes Unternehmen und / oder eines seiner verbundenen Unternehmen die mit der Erfüllung der in dieser Vereinbarung vorgesehenen Verpflichtungen von Hyland beauftragen oder diese Verpflichtungen an ein solches verbundenes Unternehmen übertragen kann.
17.4 Vergabe von Unteraufträgen. Hyland kann alle oder einen Teil der Professionellen Dienstleistungen an Subunternehmer vergeben, vorausgesetzt Hyland bleibt gegenüber dem Kunden für die Erbringung von Dienstleistungen an Subunternehmer verantwortlich.
17.5 Unabhängige Vertragspartner. Die Parteien erkennen an, dass Hyland ein unabhängiger Auftragnehmer ist und dass Hyland für seine Verpflichtungen als Arbeitgeber für die Personen, die Professionelle Dienstleistungen erbringen, verantwortlich ist.
17.6 Dritte. Keine der hierin ausdrücklich oder stillschweigend enthaltenen Regelungen, ist dazu bestimmt oder so auszulegen, dass damit anderen natürlichen oder juristischen Person als den Parteien aufgrund dieser Vereinbarung Rechte oder Rechtsmittel übertragen oder gewährt werden. Drittanbieter von mit der Software gebündelten Softwareprodukten Drittbegünstigte im Hinblick auf diese Vereinbarung, soweit sie sich auf deren Softwareprodukte bezieht.
17.7 Integration. Diese Vereinbarung (einschließlich aller Anlagen oder Anhänge, die vorhanden sind oder auf die Bezug genommen wird) stellt die gesamte Vereinbarung zwischen den Parteien in Bezug auf den Gegenstand dieser Vereinbarung dar. Diese Vereinbarung tritt an die Stelle aller früheren Vereinbarungen, Verhandlungen und Gespräche zwischen den Parteien über denselben Gegenstand. Alle anderen Bedingungen, die von den Bedingungen dieser Vereinbarung abweichen oder sie ergänzen, unabhängig davon, ob sie in einer Bestellung oder einer anderen elektronischen, schriftlichen oder mündlichen Mitteilung einer Partei an die andere enthalten sind, werden zurückgewiesen und sind null und nichtig und ohne Kraft oder Wirkung, es sei denn, sie sind in einer schriftlichen Änderungsvereinbarung enthalten, die von den Parteien gegenseitig unterzeichnet wurde. Im Falle eines Widerspruchs zwischen diesen Geschäftsbedingungen und dem Vertragsdokument gehen die Bedingungen dieser Geschäftsbedingungen vor.
17.8 Salvatorische Klausel. Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig erklärt wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall wird die betroffene Bestimmung durch eine Bestimmung ersetzt, durch die die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung innerhalb der Grenzen des geltenden Rechts bzw. maßgeblicher Gerichtsentscheidungen bestmöglich erreicht werden.
17.9 Unternehmensrichtlinien. Hyland erkennt an, dass der Kunde Unternehmensrichtlinien unterhält, die für Personen gelten, die Dienstleistungen in den Räumlichkeiten oder im System des Kunden erbringen (zusammenfassend als "Unternehmensrichtlinien" bezeichnet). Bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung wird sich Hyland in angemessener Weise bemühen, die Unternehmensrichtlinien einzuhalten, soweit diese Unternehmensrichtlinien auf die Erbringung solcher Professionellen Dienstleistungen anwendbar sind, nicht im Widerspruch zur Vereinbarung oder einem anderen zwischen Hyland und dem Kunden bestehenden Vertrag stehen und Hyland rechtzeitig vor der Beauftragung der Professionellen Dienstleistungen zur Verfügung gestellt wurden. Ungeachtet gegenteiliger Bestimmungen in den Unternehmensrichtlinien erkennt der Kunde an und erklärt sich damit einverstanden, dass Hyland nicht vertragsbrüchig oder anderweitig verantwortlich sein wird, wenn eine Hyland-Ressource die Unternehmensrichtlinien nicht einhält und ein solches Versäumnis nicht anderweitig eine Verletzung dieser Vereinbarung darstellt, und dass der Kunde als einziges Rechtsmittel die einzelne(n) Ressource(n), die für das Versäumnis verantwortlich ist/sind, sofort aus seinen Räumlichkeiten entfernen und verlangen kann, dass diese einzelne(n) Ressource(n) keine weiteren Professionellen Dienstleistungen für den Kunden erbringen.
17.10 Zertifizierter Vertriebspartner. Sofern der Kunde ein zertifizierter Vertriebspartner von Hyland ist, das Vertragsdokument vom Kunden zugunsten eines Endbenutzers (ein "Endbenutzer") abgeschlossen wurde und dieser Endbenutzer nicht zuvor einen separaten Vertrag mit Hyland abgeschlossen hat, der die im Rahmen Vertragsdokument erbrachten Professionellen Dienstleistungen regelt, gelten die Bestimmungen dieses Abschnitts.
Der Kunde und Hyland erkennen an und vereinbaren, dass Hyland die Professionellen Dienstleistungen für den Kunden für die Verwendung durch den Endbenutzer erbringt; daher (a) sichert der Kunde zu und gewährleistet, dass er einen verbindlichen Vertrag mit dem Endbenutzer in Bezug auf das Projekt abgeschlossen hat, gemäß dessen Bedingungen der Kunde Hyland als Unterauftragnehmer mit der Erbringung der Professionellen Dienstleistungen gemäß dieser Vereinbarung beauftragen darf; (b) stimmt der Kunde zu, dass die Lizenz für die Arbeitsergebnisse gemäß Abschnitt 9.2 vom Kunden an den Endnutzer unter den dort genannten Einschränkungen unterlizenziert wird und dass sich die Lizenz für die Arbeitsergebnisse mit Ausnahme des Rechts zur Unterlizenzierung nicht auf den Kunden erstreckt; und (c) stimmt der Kunde zu, dass er den Endnutzer dazu veranlasst, die Bestimmungen dieser Vereinbarung einzuhalten, die für den Kunden verbindlich sind, als wäre der Endnutzer eine Vertragspartei, einschließlich der Unterstützung von Hyland in Bezug auf geforderte Zusammenarbeit des Endnutzers bei der Erbringung der Professionellen Dienstleistungen und der Veranlassung des Endnutzers, sich an die hierin enthaltenen Beschränkungen und Einschränkungen zu halten. Des Weiteren erklärt sich der Kunde damit einverstanden, dass er für die Einhaltung dieser Vereinbarung durch den Endnutzer verantwortlich ist und erklärt sich ausdrücklich damit einverstanden, Hyland von allen Ansprüchen, Verbindlichkeiten, Verlusten, Schäden und Kosten, einschließlich angemessener Anwalts- und Gerichtskosten, freizustellen, die Hyland aufgrund eines Verstoßes des Endnutzers gegen die Bestimmungen dieser Vereinbarung erleidet.
17.11 Sprache. Hyland kann andere Versionen dieser Geschäftsbedingungen in anderen Sprachen an diesem Online-Standort zur Verfügung stellen. Diese englischsprachige Version dieser Geschäftsbedingungen hat Vorrang vor jeder Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird, wenn das Vertragsdokument in Englisch ist. Wenn das Vertragsdokument in einer anderen Sprache als Englisch verfasst ist (eine solche Sprache wird als "andere Sprache" bezeichnet), diese Geschäftsbedingungen aber nicht in dieser anderen Sprache an diesem Online-Standort zur Verfügung gestellt werden, hat diese englische Version Vorrang vor jeder anderen Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird.
Anlage A
Abwerbeverbot. Einstellungsverbot
Abschnitt 15 der Vereinbarung (Abwerbeverbot; Einstellungsverbot) entspricht den in dieser Anlage A aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
„ Betroffene Personen“ sind alle Personen, (i) mit denen die einstellende Partei Kontakt hatte oder die der einstellenden Partei im Zusammenhang mit der Vereinbarung bekannt wurden, und (ii) die Mitarbeiter der anderen Partei sind oder waren, jeweils zu einem beliebigen Zeitpunkt während des Beschäftigungsverhältnisses dieser Person bei der anderen Partei oder innerhalb eines Jahres (1), nachdem diese Person aufgehört hat, Mitarbeiter der jeweils anderen Partei zu sein.
Während der Laufzeit dieser Vereinbarung und bis zu einem (1) Jahr nach Ablauf oder Beendigung der Vereinbarung werden weder der Kunde noch Hyland (es sei denn, eine der Parteien erhält die vorherige schriftliche Zustimmung der anderen Partei) folgendes unternehmen:
Für alle Hyland-Gesellschaften, die nicht in dieser Anlage A aufgeführt sind, gilt Abschnitt 15 (Abwerbeverbot; Einstellungsverbot) nicht.
Anlage B
Anwendbares Recht, Gerichtsstand.
Abschnitt 17.2 der Vereinbarung (Anwendbares Recht; Gerichtsstand) entspricht den in dieser Anlage B aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
Anlage C
Anwendbares Recht, Gerichtsstand.
Sofern es sich bei Hyland um Hyland Software Germany GmbH handelt, gilt die nachfolgende Anlage C:
Nach eigenem Ermessen von Hyland und nach schriftlicher Mitteilung an den Kunden sind alle überfälligen Rechnungsbeträge (mit Ausnahme der Bestrittenen Beträge) mit einem Zinssatz von neun (9) Prozentpunkten p.a. über den jeweils gültigen Zinssatz der EZB ab dem Fälligkeitsdatum bis zu dem Datum, an dem diese überfälligen Beträge und aufgelaufenen Zinsen vollständig gezahlt werden, zu verzinsen. Im Falle von: (a) Verzug des Kunden mit der Zahlung jeglicher Beträge (mit Ausnahme der Bestrittenen Beträge) und der Dauer dieses Verzugs von mindestens dreißig (30) Kalendertagen nach dem Fälligkeitsdatum einer solchen Zahlung; oder (b) wenn es den Parteien nicht gelingt, eine Streitigkeit in Bezug auf einen Bestrittenen Betrag innerhalb von sechzig (60) Tagen (oder innerhalb eines anderen von den Parteien schriftlich vereinbarten Zeitraums) nach Erhalt der schriftlichen Mitteilung über die rechtzeitige Beanstandung der Zahlung solcher Beträge durch Hyland beizulegen, hat Hyland das Recht, die Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung auszusetzen oder einzustellen, bis der Verzug behoben ist.
Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software, der Hyland Cloud Services, Add-On-Services, oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten, es sei denn, dies ist ausdrücklich gesetzlich erlaubt, weil es unerlässlich ist, diese Informationen zu erhalten, um die Interoperabilität eines unabhängig erstellten Computerprogramms mit anderen Programmen zu erreichen (§ 69e UrhG) oder zur Dekompilierung oder Vervielfältigung der Software nach den Bestimmungen des § 69d UrhG. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat, gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
10.1 Beschränkte Gewährleistung für Professionelle Dienstleistungen. Hyland gewährleistet gegenüber dem Kunden, dass die Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus (a), die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden; oder (b), die in Form von Personalaufstockung erbracht werden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von einem (1) Jahr ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnisse, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß diesem Abschnitt lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Gewährleistungsfrist schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder (a) das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann; oder (b) wenn Hyland feststellt, dass eine Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, dieser Vereinbarung in Bezug auf das nicht konforme Arbeitsergebnis kündigen; in diesem Fall erstattet Hyland, sofern der Kunde seinen Verpflichtungen bei der Kündigung nachkommt, einen Teil der vor dem Zeitpunkt der Kündigung bezahlten Dienstleistungsgebühren in Bezug auf die Erstellung und Implementierung eines solchen Arbeitsergebnisses. Die gesetzlichen Gewährleistungsrechte des Kunden bleiben vorbehaltlich der ausdrücklichen Bestimmungen dieser Vereinbarung unberührt.
10.4 Gewährleistungsausschluss.
Abschnitt 10.4 wird wie folgt ergänzt: Die gesetzlichen Gewährleistungsrechte des Kunden bleiben unberührt.
10.5 Folgendes wird als neuer Abschnitt 10.5 ergänzt:
In dem Maße, in dem die im Rahmen der vorliegenden Vereinbarung erbrachten Professionellen Dienstleistungen einen Werkvertrag darstellen, gelten in dieser Hinsicht die gesetzlichen Gewährleistungsbestimmungen mit folgender Einschränkung: Ausgenommen bei vorsätzlichem oder grob fahrlässigem Verhalten seitens Hyland wird die gesetzliche Gewährleistungsfrist auf ein Jahr beschränkt, beginnend mit der Abnahme der entsprechenden Professionellen Dienstleistungen.
Diese Gewährleistung schließt ausdrücklich nicht mit der Leistungsausführung zusammenhängende Probleme aus, die als Folge von Fehlfunktionen oder Mängeln bei Hard- oder Firmware, von Softwareprogrammen, die nicht von Hyland entwickelt wurden, von unrichtigen Daten oder unrichtigen Verfahren, die vom Kunden oder von Dritten verwendet bzw. vorgenommen werden, oder der Nichterfüllung seiner Verpflichtungen in Verbindung mit dem von dieser Vereinbarung erfassten Projekt von Seiten des Kunden entstehen. In diesen Fällen verpflichtet sich der Kunde, Hyland den Zeit- und Materialaufwand für Professionelle Dienstleistungen zu erstatten, die von Hyland auf Ersuchen des Kunden um Abhilfe bei nicht mit den Leistungen zusammenhängenden und damit ausgeschlossenen Problemen ausgeführt werden.
DIE HAFTUNG VON HYLAND IST BEI VORSATZ UND GROBER FAHRLÄSSIGKEIT UNBESCHRÄNKT. BEI LEICHTER FAHRLÄSSIGKEIT HAFTET HYLAND NUR: (A) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG DES LEBENS, DES KÖRPERS ODER DER GESUNDHEIT ERGEBEN, (B) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT (D.H. EINER PFLICHT, DEREN ERFÜLLUNG DIE ORDNUNGSGEMÄSSE DURCHFÜHRUNG DES VERTRAGES ÜBERHAUPT ERST ERMÖGLICHT UND AUF DEREN EINHALTUNG DER KUNDE REGELMÄSSIG VERTRAUEN DARF) ERGEBEN; IM FALLE DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT IST DIE HAFTUNG VON HYLAND AUF DEN ERSATZ DES VORHERSEHBAREN, TYPISCHERWEISE EINTRETENDEN SCHADENS BEGRENZT.
DIE VORSTEHENDEN HAFTUNGSBESCHRÄNKUNGEN GELTEN NICHT, WENN HYLAND EINEN MANGEL ARGLISTIG VERSCHWIEGEN ODER EINE GARANTIE FÜR DIE BESCHAFFENHEIT DER SOFTWARE ÜBERNOMMEN HAT. GLEICHES GILT FÜR ANSPRÜCHE NACH DEM PRODUKTHAFTUNGSGESETZ.
EINE WEITERGEHENDE HAFTUNG VON HYLAND IST AUSGESCHLOSSEN.
Eine Abtretung von Geldforderungen nach § 354a HGB bleibt hiervon unberührt.
Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig befunden wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall werden die Parteien die betroffene Bestimmung durch eine gemeinsame Vereinbarung in einer Weise ändern, in der die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung bestmöglich erreicht werden
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Confidential - Ó 2023 Hyland Software, Inc.
Effective June 7th 2023 to October 19th 2023
DownloadTÉRMINOS Y CONDICIONES DE SERVICIOS PROFESIONALES
A la Fecha de Entrada en Vigor del Documento de Incorporación, estos Términos y Condiciones de Servicios Profesionales (estos "Términos y Condiciones") forman parte del Documento de Incorporación (como definido abajo en la Sección 1).
1. TÉRMINOS DEFINIDOS.
"Contrato" significa estos Términos y Condiciones, junto con el Documento de Incorporación.
"Cliente" significa la entidad que ha suscrito el Documento de Incorporación con Hyland. En el caso de que la contraparte sea un distribuidor autorizado de Hyland, se aplicará la Sección 17.10 de estos Términos y Condiciones.
"Importes en Disputa" significan los importes establecidos en cualquier factura en las que el Cliente haya notificado por escrito a Hyland, antes de la fecha de vencimiento de la factura, exponiendo las objeciones del Cliente, con un detalle razonable, a dichos importes.
"Documentación" significa: (a) en la medida en que estén disponibles, los "Archivos de Ayuda" incluidos en el Software, o (b) si no se incluyen "Archivos de Ayuda" en el Software, cualquier otra documentación publicada por Hyland, en cada caso, que esté relacionada con las características funcionales, operativas o de rendimiento del Software.
"Hyland" significa la compañía Hyland que forma parte del Documento de Incorporación.
"Documento de Incorporación" significa la Propuesta de Servicios, Hoja de Pedido u otro acuerdo o documento suscrito entre el Cliente y Hyland y dentro del cual se haga referencia o se enlace a estos Términos y Condiciones de Servicios Profesionales.
"Innovaciones" significan todos los diseños, procesos, procedimientos, métodos e innovaciones que son desarrolladas, descubiertas, concebidas o introducidas por Hyland, trabajando solo o en colaboración con otros, durante la ejecución del presente Contrato.
"Partes" significan Hyland y el Cliente y cada uno, una "Parte".
"Servicios Profesionales" significan los servicios prestados por Hyland en virtud del Documento de Incorporación.
"Acto Prohibido" significa (a) eliminación de cualquier aviso de copyright, marca comercial u otros derechos de propiedad que aparezcan durante el use del Software, de los Productos de Trabajo o de la Documentación ; (b) venta, transferencia, arrendamiento o sublicencia de cualquier Software, Productos de Trabajo o Documentación a un tercero; (c) salvo lo expresamente permitido con respecto al Software, los Productos de Trabajo, alterar o modificar el Software, los Productos de Trabajo o la Documentación; (d) realizar ingeniería inversa, desmontar, descompilar o intentar obtener el código fuente del Software, los Productos de Trabajo o la Documentación, o preparar trabajos derivados de los mismos; o (e) incumplir cualquier disposición de las Secciones 9, 13 o 14 de estos Términos y Condiciones.
"Software" significa el/los producto(s) o solución de software propiedad de Hyland para los que el Cliente ha obtenido una licencia válida de Hyland o de uno de sus distribuidores autorizados.
"Especificaciones" significan las especificaciones funcionales definitivas y finales de los Productos de Trabajo, en su caso, elaboradas por Hyland en virtud del Documento de Incorporación. Las Especificaciones deben ser consideradas Documentación, cuando se utilicen en el presente Contrato, en el caso de los Productos de Trabajo.
"Hora de Trabajo" significa los servicios de una (1) persona por un período de una (1) hora (o cualquier parte de la misma) durante el horario laboral habitual.
"Productos de Trabajo" significan todos los elementos que tengan la naturaleza de un producto de software, incluidos el código fuente, el código objeto, los scripts y cualquier componente o elemento de éstos, o los elementos creados utilizando las herramientas de configuración del Software, junto con todos y cada uno de los documentos de diseño asociados a los elementos que tengan la naturaleza de un producto de software, en cada caso creados, desarrollados, descubiertos, concebidos o introducidos por Hyland, trabajando solo o en colaboración con otros, en la prestación de los servicios previstos en el presente Contrato. Si es aplicable, los Productos de Trabajo incluirán cualquier plantilla preconfigurada o VBScripts que hayan sido o puedan ser creados o proporcionados de otro modo por Hyland al Cliente como parte de la configuración del módulo de captura avanzada del Software.
2. CUMPLIMIENTO. Hyland prestará los Servicios Profesionales descritos en el presente Contrato en el momento y según el cronograma establecidos en el presente Contrato o según lo acordado mutuamente por las Partes por escrito. Si se produjera algún retraso en la prestación de los Servicios Profesionales únicamente como consecuencia de cualquier información incorrecta, suposición incorrecta o incumplimiento por parte del Cliente de sus obligaciones en relación con el presente Contrato, podrá ampliarse el calendario de ejecución del proyecto aplicable. Hyland no tendrá responsabilidad alguna por los costes o gastos derivados de dichos retrasos. En caso de que no se cumpla algún hito establecido en el presente Contrato debido a un retraso causado exclusivamente por Hyland, y siempre que dicha causa no sea un caso de fuerza mayor, Hyland se compromete, sin cargo adicional para el Cliente, a destinar los recursos y el personal adicionales que sean necesarios para garantizar que dicho retraso no provoque el retraso de hitos posteriores o la finalización de los Servicios Profesionales. Las Partes acuerdan que los Servicios Profesionales o cualesquiera Productos de Trabajo descritos en el Documento de Incorporación que hayan sido realizados o desarrollados, en su totalidad o en parte, por Hyland antes de la ejecución de este Contrato, estarán cubiertos por todos los términos y condiciones de este Contrato.
3. CAMBIOS AL DOCUMENTO DE INCORPORACIÓN. Hyland o el Cliente podrán, en cualquier momento, solicitar razonablemente una modificación al Documento de Incorporación. Cualquier cambio que las Partes acepten mutuamente (en adelante "Cambio") se establecerá por un escrito preparado por Hyland y firmada por ambas Partes, que haga referencia específica al Documento de Incorporación. En caso de que las Partes no puedan llegar a un acuerdo mutuo sobre un Cambio propuesto o una orden de cambio propuesta, y dicho Cambio propuesto se refiera a un componente material del proyecto objeto del Documento de Incorporación, cualquiera de las Partes podrá rescindir el presente Contrato previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
4. OBLIGACIONES DEL CLIENTE.
4.1 Asistencia y obligaciones. El Cliente acepta que cooperará con Hyland y le prestará asistencia en la prestación de los Servicios Profesionales en virtud del presente Contrato, proporcionará los recursos especificados en el presente Contrato y realizará o cumplirá todas las obligaciones que el Cliente deba realizar o cumplir en virtud de los términos del presente Contrato. Durante cualquier periodo en el que Hyland preste servicios en virtud del presente, el Cliente proporcionará al equipo de proyecto de Hyland acceso local (in situ) y remoto (fuera de las instalaciones) independiente mediante el uso de conexiones seguras, como una conexión de red, una conexión VPN u otros métodos similares, y cuentas de usuario dedicadas con los privilegios adecuados al Software, hardware o máquinas virtuales aplicables asignados al sistema de Software aplicable. Se concederá acceso remoto y local para todos los entornos aprovisionados, incluida la producción. El Cliente reconoce que, si no presta asistencia o no realiza o cumple sus obligaciones de conformidad con el presente Contrato, la capacidad de Hyland para prestar los Servicios Profesionales, cumplir el calendario de rendimiento establecido en el presente Contrato y mantener las tarifas de servicios razonablemente en línea con cualquier estimación realizada en el presente Contrato puede verse afectada negativamente.
4.2 Derechos de Software de Terceros. A pesar de cualquier condición contraria, si el Cliente solicita a Hyland que preste Servicios Profesionales en o con respecto a cualquier software de terceros, el Cliente declara y garantiza a Hyland que el Cliente tiene todos los derechos necesarios para permitir que Hyland lo haga.
4.3 Protección de los Sistemas del Cliente. EXCEPTO EN LO RELATIVO A UNA SOLUCIÓN DE ALOJAMIENTO POR HYLAND, EL CLIENTE ENTIENDE QUE ES EL ÚNICO RESPONSABLE DE TOMAR LAS MEDIDAS ADECUADAS PARA AISLAR Y REALIZAR COPIAS DE SEGURIDAD O ARCHIVAR DE OTRO MODO SUS SISTEMAS INFORMÁTICOS, INCLUIDOS SUS PROGRAMAS INFORMÁTICOS, DATOS Y ARCHIVOS.
4.4 Entorno de Trabajo Seguro. El Cliente será responsable y se asegurará de que, mientras los empleados, agentes o subcontratistas de Hyland se encuentren en las instalaciones del Cliente, se tomen todas las precauciones legales y adecuadas en materia de salud y seguridad y estén plenamente operativas para proteger a dichas personas.
5. TARIFAS DE SERVICIOS. Salvo que se estipule lo contrario en el Documento de Incorporación: (a) Hyland cobrará al Cliente las tarifas de servicios por los Servicios Profesionales al precio de lista estándar de Hyland vigente en ese momento para los Servicios Profesionales aplicables y (b) Hyland facturará al Cliente las tarifas por los Servicios Profesionales mensualmente, a mes vencido, en función del número de Horas de trabajo necesarias para completar el proyecto y las tarifas por hora aplicables, y el Cliente abonará todos los importes de las facturas (salvo los Importes en Disputa) en su totalidad en un plazo de treinta (30) días a partir de la fecha de la factura. Cualquier estimación de las tarifas o de las Horas de Trabajo necesarias para completar el proyecto son aproximaciones del importe previsto de las tarifas y del tiempo necesario para completar el proyecto. El número real de Horas de Trabajo puede variar.
6. VIAJES Y GASTOS. El Cliente será responsable de pagar o reembolsar a Hyland todos los costes y gastos de bolsillo razonables en los que incurra Hyland en relación con la prestación de Servicios Profesionales en virtud del presente Contrato (incluidos las tarifas y gastos relativos a viajes, comidas, alojamiento y requisitos de registro de proveedores terceros) de conformidad con la política interna aplicable de Hyland para el reembolso de costes y gastos a sus empleados. Salvo que se estipule lo contrario en el Documento de Incorporación, Hyland facturará al Cliente todos los costes y gastos reembolsables mensualmente, a mes vencido; y el Cliente pagará en su totalidad cada una de las facturas emitidas en virtud del presente Contrato en un plazo neto de treinta (30) días a partir de la fecha en que Hyland emita dicha factura.
7. DETERMINADOS RECURSOS EN CASO DE IMPAGO O RETRASO EN EL PAGO. A elección de Hyland, que podrá ejercer mediante notificación por escrito al Cliente, cualquier importe vencido (salvo los Importes en Disputa) devengarán intereses a un tipo del uno y medio por ciento (1,5%) mensual (o, si es inferior, el tipo máximo legalmente exigible) desde la fecha de vencimiento hasta la fecha en que dichos importes vencidos y los intereses devengados se abonen en su totalidad. En caso de (a) incumplimiento por parte del Cliente en el pago de cualquier importe (salvo los Importes en Disputa) , cuyo incumplimiento continúe sin subsanarse durante al menos treinta (30) días naturales después de la fecha de vencimiento de dicho pago o (b) incapacidad de las Partes para resolver una disputa relacionada con un Importe en Disputa en un plazo de sesenta (60) días (o cualquier otro período acordado mutuamente, por escrito, por las Partes) tras la recepción por parte de Hyland de una notificación por escrito del Cliente en la que se impugne puntualmente el pago de dichos importes, Hyland tendrá derecho a suspender o cesar la prestación de cualquier Servicio Profesional el presente Contrato a menos que se haya subsanado dicho incumplimiento o se haya resuelto dicha disputa.
8. IMPUESTOS Y CARGAS GUBERNAMENTALES. Todos los pagos realizados en virtud del presente Contrato excluyen todos los impuestos y cargos gubernamentales aplicables (como aranceles), todos los cuales correrán a cargo del Cliente (salvo los impuestos sobre los ingresos de Hyland). En caso de que el Cliente esté obligado por ley a retener impuestos, el Cliente acepta proporcionar a Hyland todos los recibos y la documentación necesarios que justifiquen dicho pago. Si Hyland está obligado por ley a remitir cualquier impuesto o carga gubernamental en nombre o por cuenta del Cliente, el Cliente acepta reembolsar a Hyland en un plazo de treinta (30) días a partir de la fecha en que Hyland notifique al Cliente por escrito dicha remisión. El Cliente acepta proporcionar a Hyland certificados válidos de exención de impuestos antes de cualquier envío que Hyland deba realizar en nombre o por cuenta del Cliente, cuando dichos certificados sean aplicables.
9. PRODUCTOS DE TRABAJO.
9.1 Propiedad. EL PRESENTE CONTRATO NO ES UN CONTRATO DE TRABAJO POR ENCARGO. Hyland o sus proveedores conservan, con carácter exclusivo, para sí o para ellos, todos los derechos, títulos e intereses sobre cualquier propiedad intelectual desarrollada, descubierta, concebida o introducida por Hyland durante la ejecución del presente Contrato, incluidas, entre otras, todas las patentes, solicitudes de patentes, derechos de autor, marcas comerciales, otros derechos de propiedad intelectual y derechos de información confidencial y de propiedad sobre cualquier Producto de Trabajo, Innovación o Documentación, o relacionados con ellos. El Software, la Documentación y los Productos de Trabajo están protegidos por leyes de derechos de autor y tratados internacionales sobre derechos de autor, así como por otras leyes y tratados sobre propiedad intelectual. No se transfiere al Cliente ningún derecho de propiedad sobre el Software, las Innovaciones o los Productos de Trabajo. El Cliente acepta que nada de lo dispuesto en el presente Contrato o en los documentos asociados le otorga derecho, titularidad o interés alguno sobre el Software, la Documentación o los Productos de Trabajo, salvo los derechos expresos limitados que se conceden en el presente Contrato.
9.2 Licencia de los Productos de Trabajo. Hyland concede al Cliente una licencia limitada, no exclusiva y no transferible para utilizar los Productos de Trabajo únicamente en relación con el uso autorizado por parte del Cliente del Software o de otros productos o servicios de Hyland (conjuntamente, "Producto Principal de Hyland") con los que Hyland haya entregado dicho Producto de Trabajo para su uso por parte del Cliente. El Cliente no podrá: (a) realizar ni autorizar la realización de copias de ningún Producto de Trabajo; (b) eliminar ningún aviso de Hyland en los Productos de Trabajo; (c) vender, transferir, alquilar, contrato de leasing, tiempo compartido o sublicenciar los Productos de Trabajo a terceros; o (d) desensamblar, descompilar, realizar ingeniería inversa o intentar obtener el código fuente de cualquier Producto de Trabajo por cualquier motivo. Asimismo, el Cliente acepta que, en relación con cualquier uso de los Productos de Trabajo por parte del Cliente, los Productos de Trabajo no se copiarán ni instalarán en servidores adicionales a menos que el Cliente haya adquirido una licencia para ello. Se aplicarán a los Productos de Trabajo todas las restricciones de uso del Producto Principal de Hyland, incluidas, entre otras, las restricciones a la exportación y las disposiciones relativas al Usuario final del Gobierno de EE. UU. en virtud de los términos del acuerdo de licencia en virtud del cual el Cliente recibió el derecho a utilizar el Software con el que se utilizarán los Productos de Trabajo. Si la licencia del Producto Principal de Hyland con la que Hyland entregó dicho Producto de Trabajo para su uso por parte del Cliente finaliza, el derecho del Cliente a utilizar el Producto de Trabajo aplicable también finalizará. Todos los derechos y obligaciones posteriores a la finalización con respecto al Producto Principal de Hyland aplicable también se aplicarán al Producto de Trabajo.
9.3 Modificación de Productos de Trabajo.
(a) Forma de los Productos de Trabajo entregados. La forma en la que Hyland entregue los Productos de Trabajo será determinada por Hyland en función del propósito y la funcionalidad del Producto de Trabajo.
(b) Productos de Trabajo de Configuración. Si Hyland entrega un Producto de Trabajo: (a) en forma de (i) código fuente compilado por las herramientas del Software en lenguaje de máquina; o (ii) un script; o (b) creado utilizando las herramientas de configuración del Software (un "Producto de Trabajo de Configuración"), Hyland concede al Cliente el derecho limitado a modificar el Producto de Trabajo de Configuración, siempre que dicho Producto de Trabajo de Configuración modificado se utilice únicamente de conformidad con los términos de la licencia limitada para dicho Producto de Trabajo concedida en virtud de la presente Sección.
(c) Productos de Trabajo Independientes. Si Hyland entrega un Producto de Trabajo que no es un Producto de Trabajo de Configuración (un "Producto de Trabajo Independiente"), el Cliente no podrá alterar ni modificar dicho Producto de Trabajo Independiente, salvo que se indique lo contrario en la última frase de este párrafo. Si Hyland entrega un Producto de Trabajo Independiente y el Cliente desea obtener el derecho a modificarlo, las Partes podrán acordar mutuamente que Hyland entregue al Cliente una copia del formato del Producto de Trabajo Independiente que sea necesaria para que el Cliente pueda completar sus modificaciones, siempre y cuando el Cliente realice a Hyland el previo pago de cualquier tarifas adicionales por Servicios Profesionales que Hyland pueda cobrar por preparar y entregar dicho formato. En tal caso, Hyland concede al Cliente el derecho a modificar y, si fuera necesario, compilar el formato entregado del Producto de Trabajo Independiente, siempre que dicho Producto de Trabajo Independiente modificado se utilice únicamente de conformidad con los términos de la licencia limitada de dicho Producto de Trabajo concedida en virtud de la presente Sección.
9.4 Indemnización por Infracción de los Productos de Trabajo. Hyland acepta indemnizar al Cliente por cualquier responsabilidad y gasto, incluidos los honorarios razonables de abogados, derivados o relacionados con cualquier reclamación, acción o procedimiento de terceros iniciado contra el Cliente basado en cualquier infracción o apropiación indebida por parte de los Productos de Trabajo de cualquier patente, derecho de autor registrado o marca comercial registrada de un tercero, siempre que Hyland: (i) sea notificado rápidamente después de que el Cliente reciba la notificación de dicha reclamación; (ii) sea el único encargado de la defensa y de las negociaciones para llegar a un acuerdo con respecto a dicha reclamación, siempre que Hyland no llegue a un acuerdo con respecto a dicha reclamación sin el consentimiento previo por escrito del Cliente si dicho acuerdo contiene una estipulación o admisión o reconocimiento de cualquier responsabilidad o acto ilícito por parte del Cliente o requiere de otro modo un pago por parte del Cliente; (iii) reciba la cooperación razonable del Cliente en la defensa o resolución de dicha reclamación; y (iv) tenga derecho, en caso de que se produzca o sea probable (en opinión de Hyland) que se produzca una infracción o apropiación indebida, a obtener para el Cliente el derecho a seguir utilizando los Productos de Trabajo o a sustituir las partes pertinentes de los Productos de Trabajo por otras partes equivalentes que no supongan una infracción.
(a) Retirada y reembolso. Si Hyland no puede llevar a cabo ninguna de las opciones establecidas en la Sección 9.4(iv), Hyland retirará la parte infractora de los Productos de Trabajo y reembolsará al Cliente las tarifas de servicios abonadas, en su caso, por el Cliente en relación únicamente con la creación e implementación de los Productos de Trabajo infractores en virtud del presente Contrato.
(b) Exclusiones. Sin perjuicio de cualquier disposición en contrario, Hyland no tendrá obligación alguna ante el Cliente de defender o satisfacer ninguna reclamación presentada contra el Cliente y descrita de otro modo en la Sección 9.4 que surja de: (i) el Cliente utilizó los Productos de Trabajo por parte del Cliente de forma expresamente no permitida por el presente Contrato; (ii) la combinación de los Productos de Trabajo con cualquier producto no suministrado por Hyland al Cliente; (iii) la modificación o adición de los Productos de Trabajo por parte de otro que no sea Hyland o cualquiera de sus distribuidores autorizados contratados específicamente por Hyland para proporcionar dicha modificación o adición; o (iv) los métodos, procesos, información o datos empresariales del Cliente.
(c) ESTA SECCIÓN 9.4 ESTABLECE LA RESPONSABILIDAD TOTAL DE HYLAND Y EL RECURSO ÚNICO Y EXCLUSIVO DEL CLIENTE CON RESPECTO A CUALQUIER SUPUESTA INFRACCIÓN O APROPIACIÓN INDEBIDA DE PROPIEDAD INTELECTUAL O PROPIEDAD INTELECTUAL POR LOS PRODUCTOS DE TRABAJO.
10. GARANTÍA LIMITADA PARA SERVICIOS Y PRODUCTOS DE TRABAJO.
10.1 Garantía Limitada para los Servicios Profesionales. Durante un periodo de sesenta (60) días a partir de la fecha de finalización de los Servicios Profesionales, Hyland garantiza al Cliente que dichos Servicios Profesionales se han prestado de forma correcta y profesional y sustancialmente de acuerdo con los estándares del sector. Esta garantía excluye específicamente los problemas de rendimiento causados por datos o procedimientos incorrectos utilizados o proporcionados por el Cliente o un tercero, o por fallos del Cliente para realizar y cumplir sus obligaciones en virtud del presente Contrato.
10.2 Garantía limitada de los Productos de Trabajo. Durante un periodo de sesenta (60) días a partir de la fecha en que Hyand haya entregado al Cliente un Producto de Trabajo terminado, Hyland garantiza al Cliente que dicho Producto de Trabajo, cuando se instale y utilice correctamente, funcionará en todos los aspectos materiales tal y como se describe en las Especificaciones. Los términos de esta garantía no se aplicarán a, y Hyland no tendrá ninguna responsabilidad por cualquier no conformidad relacionada con, cualquier Producto de Trabajo que haya sido (a) modificado o añadido por el Cliente o un tercero, (b) utilizado en combinación con equipos o software distintos de los que se ajustan a las Especificaciones, o (c) mal utilizado o abusado.
10.3 Recurso. La única obligación de Hyland, y el único y exclusivo recurso del Cliente en caso de no conformidad con las garantías limitadas expresas de las Secciones 10.1 y 10.2 serán los siguientes: siempre que, dentro del periodo aplicable de sesenta (60) días, el Cliente notifique por escrito a Hyland la no conformidad, Hyland realizará todos los esfuerzos razonables para volver a prestar los servicios no conformes en un intento de corregir la(s) no conformidad(es) o, en el caso de un Producto de Trabajo, reparar o sustituir el Producto de Trabajo no conforme, lo que puede incluir la entrega de una solución comercialmente razonable para subsanar la no conformidad. Si Hyland no puede corregir dicha(s) disconformidad(es) tras un periodo de tiempo razonable o determina que la reparación o sustitución del Producto de Trabajo no es comercialmente razonable, el único y exclusivo recurso del Cliente será rescindir el presente Contrato, en cuyo caso Hyland reembolsará al Cliente la parte de las tarifas de servicios en virtud del presente Contrato relacionados directamente con dichos Servicios Profesionales disconformes o con la creación e implementación del Producto de Trabajo disconforme, en cualquier caso abonados antes de dicha rescisión.
10.4 Exclusión de garantías. SALVO EN LOS CASOS INDICADOS ANTERIORMENTE, HYLAND Y SUS PROVEEDORES NO OFRECEN NINGUNA GARANTÍA NI DECLARACIÓN EN RELACIÓN CON LOS PRODUCTOS DE TRABAJO, LAS INNOVACIONES, LA INFORMACIÓN O LOS SERVICIOS PROFESIONALES PRESTADOS EN VIRTUD DEL PRESENTE CONTRATO. HYLAND Y SUS PROVEEDORES RECHAZAN Y EXCLUYEN CUALQUIER OTRA GARANTÍA EXPRESA, IMPLÍCITA Y LEGAL, INCLUIDAS, ENTRE OTRAS, LAS GARANTÍAS CONTRA INFRACCIONES, LAS GARANTÍAS IMPLÍCITAS DE COMERCIABILIDAD E IDONEIDAD PARA UN FIN DETERMINADO, Y LAS GARANTÍAS QUE PUEDAN SURGIR O CONSIDERARSE SURGIDAS DE CUALQUIER CURSO DE EJECUCIÓN, CURSO DE NEGOCIACIÓN O USO COMERCIAL. HYLAND Y SUS PROVEEDORES NO GARANTIZAN QUE LOS SERVICIOS PROFESIONALES O LOS PRODUCTOS DE TRABAJO PROPORCIONADOS SATISFAGAN LOS REQUISITOS DEL CLIENTE O ESTÉN EXENTOS DE DEFECTOS O ERRORES, NI QUE EL FUNCIONAMIENTO DEL SOFTWARE O DE LOS PRODUCTOS DE TRABAJO PROPORCIONADOS EN VIRTUD DEL PRESENTE CONTRATO SEA ININTERRUMPIDO. SALVO QUE SE INDIQUE EXPRESAMENTE EN EL PRESENTE CONTRATO, HYLAND NO ASUME RESPONSABILIDAD ALGUNA CON RESPECTO AL HARDWARE, FIRMWARE, SOFTWARE O SERVICIOS DE TERCEROS.
11. RESCISIÓN.
11.1 En General. Salvo que se indique lo contrario en un Documento de Incorporación , o las partes acuerden lo contrario por escrito, el Cliente o Hyland podrán rescindir el presente Contrato, por cualquier motivo, previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
11.2 Por Cualquiera de las Partes. Cualquiera de las Partes podrá rescindir el presente Contrato en su totalidad, con efecto inmediato previa notificación por escrito a la otra Parte, si la otra Parte ha incumplido una disposición sustancial del presente Contrato y no ha subsanado el incumplimiento en un plazo de treinta (30) días a partir de la recepción de la notificación por escrito del incumplimiento enviada por la Parte que no ha incumplido; no obstante, Hyland no estará obligado a dar al Cliente ninguna oportunidad de subsanar ningún incumplimiento en el caso de cualquier Acto Prohibido, todos los cuales se consideran, a todos los efectos, disposiciones sustanciales del presente Contrato.
11.3 Rescisión del Presente Contrato. En caso de rescisión del presente Contrato, el Cliente acepta compensar a Hyland por todos los Servicios Profesionales ya prestados antes de la fecha de rescisión, incluida ésta, salvo en la medida que Hyland haya incumplido sus obligaciones de prestar dichos Servicios Profesionales y dicho incumplimiento sea la causa de la rescisión.
11.4 Efectos de la Rescisión. En caso de rescisión del presente Contrato en su totalidad (a menos que sea alegada por Hyland debido al incumplimiento del Cliente), la licencia del Cliente para utilizar los Productos de Trabajo previstos en el presente Contrato seguirá vigente de acuerdo con los términos previstos.
12. LIMITACIONES DE RESPONSABILIDAD.
12.1 NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, OMISIÓN O CUALQUIER OTRA TEORÍA LEGAL, DE NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENTE, NI DE NINGUNA PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUIDOS LAS TARIFAS DEBIDOS EN VIRTUD DEL PRESENTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REPARACIÓN DE LA COBERTURA, O DAÑOS POR INTERRUPCIÓN DEL NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE DICHOS DAÑOS, PÉRDIDAS, GASTOS O COSTES.
12.2 LA RESPONSABILIDAD TOTAL Y ACUMULATIVA DE HYLAND (INCLUIDOS SUS FILIALES Y PROVEEDORES) DERIVADA DEL PRESENTE CONTRATO, YA SEA CONTRACTUAL O EXTRACONTRACTUAL, (INCLUIDA LA NEGLIGENCIA, O CUALQUIER OTRA TEORÍA LEGAL) NO SUPERARÁ EN NINGÚN CASO LOS IMPORTES TOTALES PAGADOS REALMENTE A HYLAND POR EL CLIENTE (MENOS CUALQUIER REEMBOLSO O CRÉDITO) POR LA PRESTACIÓN DE LOS SERVICIOS QUE DEN LUGAR A LA RECLAMACIÓN DURANTE EL PERÍODO DE DOCE (12) MESES INMEDIATAMENTE ANTERIOR AL PRIMER EVENTO QUE DÉ LUGAR A DICHA RECLAMACIÓN. CON RESPECTO A CUALQUIER PRODUCTO O SERVICIO PROFESIONAL PROPORCIONADO AL CLIENTE DE FORMA GRATUITA (COMO SOFTWARE O SERVICIOS DE EVALUACIÓN), NI HYLAND NI NINGUNA DE SUS FILIALES O PROVEEDORES SERÁN RESPONSABLES DE LOS DAÑOS.
13. EXPORTACIÓN. El Software, los Productos de Trabajo o la Documentación suministrados en virtud del presente Contrato están sujetos a las leyes de control de exportaciones de los Estados Unidos y otras jurisdicciones. El Cliente se compromete a cumplir plenamente todas las leyes pertinentes de control de las exportaciones, incluidos los reglamentos del Departamento de Comercio de los Estados Unidos y todas las leyes de control de las exportaciones de los Estados Unidos, incluidos, entre otros, los Regulaciones de Administración de Exportaciones (EAR) del Departamento de Comercio de los Estados Unidos, para garantizar que el Software, los Productos de Trabajo o la Documentación no se exporten infringiendo la legislación de los Estados Unidos de América o las leyes y regulaciones de otras jurisdicciones. El Cliente acepta que no exportará ni reexportará el Software, los Productos de Trabajo o la Documentación a ninguna organización o nacional de los territorios con embargo de los Estados Unidos de América de Cuba, Irán, Corea del Norte, Sudán, Siria o cualquier otro territorio o nación con respecto a los cuales el Departamento de Comercio de los Estados Unidos de América, el Departamento de Estado de los Estados Unidos de América, el Departamento del Tesoro de los Estados Unidos de América, la U.E. y/o cualquier otro Estado nacional mantengan algún programa de sanciones por actividades comerciales. El Cliente no utilizará el Software, los Productos de Trabajo ni la Documentación para ningún uso prohibido en virtud de las leyes y normativas aplicables de los Estados Unidos de América y otras jurisdicciones, incluyendo, pero sin limitarse a, cualquier aplicación relacionada con, o con fines asociados a, la guerra nuclear, química o biológica, la tecnología de misiles (incluidos los vehículos aéreos no tripulados), la aplicación militar o cualquier otro uso prohibido o restringido en virtud de la Normativa de Administración de Exportaciones de los Estados Unidos de América (EAR) o cualquier otra ley, norma o regulación pertinente de los Estados Unidos de América y otras jurisdicciones.
14. INFORMACIÓN CONFIDENCIAL.
14.1 La "Información Confidencial" será aquella información que esté marcada como "Privada" o "Confidencial", que sea conocida por el destinatario como confidencial o que su naturaleza sea habitualmente sea confidencial entre partes comerciales, salvo lo dispuesto en la siguiente frase. La Información Confidencial no incluirá información que (a) sea o pase a ser generalmente conocida por el público sin incumplimiento del presente Contrato por parte del destinatario, o (b) el destinatario demuestre que ha estado en su posesión antes de su divulgación por la parte divulgadora, o (c) el destinatario reciba de un tercero que no esté sujeto, a conocimiento del destinatario, a restricciones, obligaciones o deberes de no divulgación a la parte divulgadora, o (d) el destinatario demuestre que ha sido desarrollada de forma independiente por el destinatario sin referencia o uso de la información de la parte divulgadora.
14.2 Cada una de las partes acuerda que, con respecto a la Información Confidencial de la otra Parte, o de sus filiales, dicha Parte, como receptora, utilizará el mismo grado de cuidado para proteger su propia Información Confidencial, pero en ningún caso menos que el cuidado razonable, y no utilizará ni revelará a terceros dicha Información Confidencial, salvo en la medida en que lo exija la ley o una orden judicial, o según lo dispuesto en el presente Contrato. El Cliente se compromete a tomar las medidas razonables para proteger todos los Productos de Trabajo e Innovaciones, así como cualquier Documentación relacionada, entregados por el Hyland al Cliente en virtud del Contrato frente a copias o usos no autorizados. Cada una de las Partes será responsable de cualquier incumplimiento de esta Sección 14 cometido por cualquiera de sus empleados, agentes, consultores, contratistas o representantes.
14.3 Las Partes reconocen que un recurso legal por incumplimiento de las disposiciones del presente Contrato relativas a la Información Confidencial y a los derechos de propiedad intelectual no será adecuado para la protección de la parte perjudicada y, en consecuencia, la parte perjudicada tendrá derecho a solicitar, además de cualquier otra reparación y recurso a su disposición, un cumplimiento específico o medidas cautelares para hacer cumplir las disposiciones del presente Contrato.
15. NO CAPTACIÓN; NO CONTRATACIÓN. Véase el Anexo A adjunto.
16. TÉRMINOS Y CONDICIONES ADICIONALES. Si Hyland es una de las compañías de Hyland que se indican a continuación, se aplicarán los términos y condiciones adicionales o alternativos establecidos en el Anexo de términos adicionales aplicable que se indica a continuación:
| Compañía de Hyland | Anexo de Términos Adicionales |
| Hyland Colombia S.A.S. | Anexo C |
| Hyland Mexico S. de R.L. de C.V. | Anexo D |
| Hyland Software, Inc., si el Cliente se localiza en Perú | Anexo E |
17. CONDICIONES GENERALES.
17.1. Fuerza Mayor. Ningún incumplimiento, retraso o falta de cumplimiento de cualquier obligación de una Parte (excepto el pago de dinero) constituirá un incumplimiento o violación en la medida en que dicho incumplimiento, retraso o falta de cumplimiento surja de una causa, existente o futura, fuera del control (incluyendo, pero no limitado a: acción o inacción de la autoridad gubernamental, civil o militar; incendio; huelga, cierre patronal u otro conflicto laboral; inundación; guerra; disturbios; robo; terremoto; desastre natural o caso fortuito; emergencias nacionales; indisponibilidad de materiales o servicios públicos; sabotaje; virus; o acto, negligencia o incumplimiento de la otra Parte) y sin negligencia o dolo de la Parte a la que se imputa el incumplimiento, retraso o incumplimiento. Cualquiera de las Partes que desee invocar alguna de las causas anteriores como excusa para el incumplimiento, la demora o el retraso en el cumplimiento deberá, cuando surja la causa, notificar a la otra Parte sin demora y por escrito los hechos que constituyen dicha causa; y, cuando la causa deje de existir, notificar este hecho sin demora a la otra Parte. La presente Sección 17.1 no limitará en modo alguno el derecho de cualquiera de las Partes a reclamar a terceros por los daños sufridos debido a dichas causas. Si cualquier fecha de cumplimiento en virtud del presente Contrato se pospone o prorroga de conformidad con la presente Sección 17.1 durante más de noventa (90) días naturales, la otra Parte, mediante notificación por escrito entregada durante el aplazamiento o la prórroga, y al menos treinta (30) días antes de la fecha efectiva de rescisión, podrá rescindir el presente Contrato.
17.2. Ley aplicable; Jurisdicción. Véase el Anexo B adjunto.
17.3 Efecto Vinculante; Cesiones. El presente Contrato será vinculante y adaptará en beneficio de las Partes y de sus respectivos sucesores y cesionarios autorizados. Ninguna de las Partes podrá ceder, transferir o sublicenciar la totalidad o parte del presente Contrato o sus derechos u obligaciones en virtud del mismo, en su totalidad o en parte, a cualquier otra persona o entidad sin el consentimiento previo por escrito de la otra Parte; siempre que dicho consentimiento no sea denegado injustificadamente en el caso de cualquier cesión o transferencia por una Parte del presente Contrato en su totalidad a la entidad superviviente de una fusión o consolidación o a cualquier comprador de sustancialmente todos los activos de dicha Parte que asuma por escrito todas las obligaciones y deberes de dicha Parte en virtud del presente Contrato. Cualquier cesión realizada sin cumplir las disposiciones de esta Sección será nula y sin efecto. No obstante cualquier disposición en contrario, Hyland puede ceder este Contrato a cualquier filial de Hyland sin el consentimiento de la otra parte mediante notificación por escrito a la otra parte. El Cliente reconoce que Hyland y/o cualquiera de sus filiales puede cumplir cualquiera de las obligaciones de Hyland contempladas en el presente Contrato.
17.4 Subcontratación. Hyland podrá subcontratar la totalidad o parte de los Servicios Profesionales, siempre que Hyland siga siendo responsable ante el Cliente de la prestación de los servicios subcontratados.
17.5 Contratista Independiente. Las Partes reconocen que Hyland es un contratista independiente y que será responsable de sus obligaciones como empleador de las personas que presten los Servicios Profesionales.
17.6 Terceros. Nada de lo aquí expresado o implícito pretende o deberá interpretarse para conferir o dar a cualquier persona o entidad, distinta de las Partes, ningún derecho o recurso en virtud del presente Contrato; sin embargo, los terceros proveedores de productos de software incluidos con el Software son terceros beneficiarios del presente Contrato en la medida en que se aplique a sus respectivos productos de software.
17.7 Integración. El presente Contrato, incluido cualquier exhibit, anexo o acuerdo adjunto al presente Contrato o al que se haga referencia en el mismo, establece la totalidad del acuerdo y entendimiento de las Partes en relación con el objeto de este y sustituye todos los acuerdos, negociaciones y discusiones anteriores entre ellas sobre el mismo objeto. Cualquier otro término que varíe o se añada a los términos de este Contrato, ya sea contenido en cualquier orden de compra u otra comunicación electrónica, escrita u oral hecha de una Parte a la otra, es rechazado y será nulo y sin fuerza o efecto a menos que se incluya en una enmienda escrita firmada mutuamente por las Partes. En la medida en que exista un conflicto entre estas Condiciones Generales y el Documento de Incorporación, prevalecerán los términos de estas Condiciones Generales.
17.8 Divisibilidad. Si alguna disposición del presente Contrato es considerada inaplicable o inválida por una autoridad competente, dicha inaplicabilidad o invalidez no hará que el presente Contrato sea inaplicable o inválido en su totalidad y, en tal caso, dicha disposición se modificará e interpretará de forma que cumpla de la mejor manera posible los objetivos de dicha disposición inaplicable o inválida dentro de los límites de la legislación aplicable o de las decisiones judiciales aplicables.
17.9 Políticas Corporativas. Hyland reconoce que el Cliente mantiene políticas corporativas que se aplican a las personas que prestarán servicios utilizando las instalaciones o el sistema del Cliente (colectivamente, las “Políticas Corporativas”). Al prestar Servicios Profesionales en virtud de este Contrato, Hyland realizará esfuerzos razonables para cumplir con las Políticas Corporativas en la medida en que dichas Políticas Corporativas sean aplicables a la prestación de dichos Servicios Profesionales, no entren en conflicto con el Contrato ni con ningún otro acuerdo relacionado vigente entre Hyland y el Cliente y se hayan facilitado a Hyland con una antelación razonable a la contratación de los Servicios Profesionales. Sin perjuicio de cualquier disposición en contrario en dichas Políticas Corporativas, si un recurso de Hyland incumple las Políticas Corporativas y dicho incumplimiento no constituye de otro modo un incumplimiento de este Contrato, el Cliente reconoce y acepta que Hyland no habrá incumplido el contrato ni será responsable de otro modo por daños y perjuicios, y como único recurso del Cliente, el Cliente podrá retirar inmediatamente de sus instalaciones el/los recurso(s) individual(es) responsable(s) del incumplimiento y exigir que dicho(s) recurso(s) individual(es) no realice(n) más Servicios Profesionales para el Cliente.
17.10 Distribuidor Autorizado. En la medida en que el Cliente sea un distribuidor autorizado de Hyland, el Documento de Incorporación haya sido suscrito por el Cliente en beneficio de un usuario final (un "Usuario Final"), y dicho Usuario Final no haya suscrito previamente un contrato independiente con Hyland que rija los Servicios Profesionales prestados en virtud del Documento de Incorporación, se aplicarán los términos de esta Sección.
El Cliente y Hyland reconocen y acuerdan que Hyland presta Servicios profesionales al Cliente en beneficio del Usuario final; por lo tanto, el Cliente (a) declara y garantiza que ha suscrito un contrato vinculante con el Usuario final en relación con el proyecto, en virtud del cual se permite al Cliente contratar a Hyland como subcontratista para prestar los Servicios profesionales contemplados en el presente Contrato; (b) acuerda que la licencia de los Productos de trabajo de la Sección 9. 2 será sublicenciada por el Cliente al Usuario Final, sujeta a las restricciones establecidas en la misma y que, aparte del derecho a sublicenciar los Productos de Trabajo, la licencia de los Productos de Trabajo no se extiende al Cliente; y (c) acepta que hará que el Usuario Final cumpla las disposiciones de este Contrato que son vinculantes para el Cliente como si el Usuario Final fuera una Parte, incluyendo facilitar la cooperación del Usuario Final según lo solicitado por Hyland para proporcionar los Servicios Profesionales y hacer que el Usuario Final cumpla las restricciones y limitaciones contenidas en el presente documento. Además, el Cliente acepta que será responsable del cumplimiento de este Contrato por parte del Usuario final y acepta expresamente indemnizar a Hyland por todas las reclamaciones, responsabilidades, pérdidas, daños y costes, incluidos los honorarios razonables de abogados y las costas judiciales, sufridos o incurridos por Hyland derivados de cualquier incumplimiento por parte del Usuario final de cualquiera de las disposiciones de este Contrato.
17. 11 El Idioma que Controla. Hyland puede poner a disposición otras versiones de estas Condiciones Generales en otros idiomas en esta ubicación en línea. Esta versión en español de estas Condiciones Generales prevalece sobre cualquier versión de estas Condiciones Generales disponible en esta ubicación en línea en otro idioma si el Documento de Incorporación está en español. Si el Documento de Incorporación está redactado en un idioma distinto del español ("Otro Idioma"), pero estas Condiciones Generales no están disponibles en esta ubicación en línea en el Otro idioma, esta versión en español prevalece sobre cualquier otra versión de las Condiciones Generales que pueda estar disponible en esta ubicación en línea en otro idioma.
Anexo A
No Captación; No Contratación
La Sección 15 del Contrato (No Captación; No Contratación) serán los términos establecidos en este Anexo A, basados en la compañía Hyland aplicable que se enumera a continuación:
“Personas Restringidas” significa cualquier persona (i) con la que la parte contratante haya tenido contacto o que haya llegado a ser conocida por la parte contratante en relación con el Contrato; y (ii) que sea o haya sido empleado de la otra parte, en cada caso en cualquier momento durante el empleo de dicha persona por la otra parte o en el plazo de un (1) año después de que dicha persona haya dejado de ser empleado de la otra parte.
Durante la vigencia de este Contrato y durante un (1) año tras la expiración o rescisión del Contrato, ni el Cliente ni Hyland podrá (salvo en la medida en que cualquiera de las partes reciba el consentimiento previo por escrito de la otra parte):
(a) solicitar empleo o contratación como contratista independiente para la parte solicitante o para cualquier otro tercero a una Persona Restringida, o animar o ayudar de cualquier otro modo a dicha Persona Restringida a abandonar el empleo de la otra parte por cualquier motivo, en cada caso en cualquier momento durante el empleo de dicha Persona Restringida por la otra parte o en el plazo de un año (1) después de que dicha persona haya dejado de ser empleada de la otra parte; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona que sea un Individuo Restringido.
(c) Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con la Sección 15(a). Las Partes acuerdan que esta disposición subsiste tras la rescisión del Contrato.
(d) La Sección 15(d) del Contrato serán los términos establecidos a continuación, basados en la compañía de Hyland aplicable que se enumera a continuación:
1. Hyland Software, Inc. Si Hyland es Hyland Software, Inc. (excepto en la medida en que el Cliente esté ubicado en Perú), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, o Hyland Poland Spolka Z.O.O., se aplicarán los siguientes términos como Sección 15(d):
Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de los abogados.
2. Hyland Software Brasil Ltda. Si Hyland es Hyland Software Brasil Ltda, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual a Ciento Noventa Mil Reales (R$190.000,00), y todos los costos asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo pero no limitado a honorarios razonables de abogados.
3. Hyland Software Germany GMBH. Si Hyland es Hyland Software Germany GMBH, se aplicarán los siguientes términos como Sección 15(d): Cada violación culpable de esta disposición por una parte da derecho a la otra a un pago por un importe igual a Cincuenta Mil Euros (50.000,00 €), y todos los costes asociados con el cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
Además, sin perjuicio de cualquier disposición en contrario en el presente documento, la subsección 15(c) anterior será modificada y sustituida en su totalidad de la siguiente manera: Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con las Secciones 15(a) y 15(b). Las Partes acuerdan que esta disposición subsistirá a la terminación del Contrato.
4. Hyland Software Mexico S. de R.L. de C.V. Si Hyland es Hyland Software Mexico S. de R.L. de C.V., los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de abogados.
5. Hyland Switzerland SARL. Si Hyland es Hyland Switzerland SARL, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra a un pago por un importe igual a Cincuenta Mil Francos Suizos (CHF50.000,00), y todos los costes asociados al cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
6. Hyland UK Operations Limited. Si Hyland es Hyland UK Operations Limited los siguientes términos se aplicarán como Sección 15(d):
7. Hyland Software Canada ULC. Si Hyland es Hyland Software Canada ULC, los siguientes términos se aplicarán como Sección 15 del Contrato (No Captación; No Contratación):
Durante la vigencia del presente Contrato, el Cliente no podrá:
(a) solicitar empleo o ser contratado como contratista independiente para sí mismo o para un tercero a una persona que sea empleado de Hyland, ni animar o ayudar de otro modo a dicha persona a abandonar el empleo de Hyland por cualquier motivo; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona: (i) con la que el Cliente haya tenido contacto o que haya llegado a ser conocida por el Cliente en relación con este Contrato; y (ii) que sea empleado de Hyland;
(c) Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del empleado inmediatamente antes de dejar el servicio de la otra parte, y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo, pero no limitado a, los honorarios razonables de abogados. Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con esta Sección 15.
Para cualquier compañía de Hyland a la que no se haga referencia en este Anexo A, no se aplicará la Sección 15 (No Captación; No Contratación).
Anexo B
Ley aplicable; Jurisdicción
La Sección 17.2 del Contrato (Ley aplicable; Jurisdicción) será la establecida en este Anexo B, basada en la compañía Hyland aplicable que se indica a continuación:
siempre y cuando, si Hyland está prestando servicios dentro de los siguientes países, los términos identificados a continuación se aplicarán en lugar de los términos anteriores:
1. Perú. El presente Contrato y cualquier reclamación, acción, pleito, procedimiento o controversia que se derive del mismo se regirán en todos los aspectos por, y se interpretarán de conformidad con, las Leyes sustantivas de la República del Perú, a excepción de los Conflictos de Leyes (y no por la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980, en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. En caso de cualquier controversia en relación con el presente Contrato, incluyendo su interpretación, validez y existencia, dicha controversia se resolverá mediante arbitraje de derecho, bajo las normas del Tribunal Arbitral de la Cámara de Comercio de Lima. El panel arbitral estará conformado por tres árbitros designados de conformidad con dicho reglamento. Cada Parte podrá designar un árbitro y los dos árbitros designados designarán un tercer árbitro que actuará como presidente del panel.
2. Singapur. El presente Contrato y cualquier reclamación, acción, litigio, procedimiento o controversia que se derive del mismo se regirá e interpretará en todos sus aspectos de conformidad con el derecho sustantivo de la República de Singapur (y no con la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980 ni con la Ley Uniforme de Transacciones Informáticas, ambas en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. Los tribunales de Singapur serán los únicos competentes para conocer de cualquier acción, litigio o procedimiento derivado del presente Contrato.
Anexo C
Anexo de Términos Adicionales para Hyland Colombia S.A.S.
Si Hyland es Hyland Colombia S.A.S., se aplicará el presente Anexo C:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo D
Anexo de Términos Adicionales para Hyland Mexico S. de R.L. de C.V.
Si Hyland es Hyland Mexico S. de R.L. de C.V., se aplicará el presente Anexo D:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en el Artículo 1916 del Código Civil Federal Mexicano.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo E
Anexo de Términos Adicionales para Hyland Software, Inc. – Perú
Si Hyland es Hyland Software, Inc., pero Hyland está prestando servicios dentro del país de Perú, se aplicará este Anexo E:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en los artículos 1984 y 1322 del Código Civil.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
(The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.)
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 6th 2023 to June 7th 2023
DownloadTable of Contents
PROFESSIONAL SERVICES TERMS AND CONDITIONS
As of the Effective Date of the Incorporating Document, these Professional Services Terms and Conditions (these “Terms and Conditions”) are part of the Incorporating Document (as defined in Section 1, below).
1. DEFINED TERMS.
“Agreement” means these Terms and Conditions, together with the Incorporating Document.
“Customer” means the entity that has entered into the Incorporating Document with Hyland. In the case that the counterparty is a certified channel partner of Hyland’s, Section 17.10 of these Terms and Conditions shall apply.
“Disputed Amounts” means those amounts set forth on any invoice for which Customer has provided written notice to Hyland, prior to the invoice due date, setting forth Customer’s objections, in reasonable detail, to such amounts.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Software, or (b) if no such “Help Files” are included in the Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Software.
“Hyland” means the Hyland company that is a party to the Incorporating Document.
“Incorporating Document” means the Services Proposal, Order Form or other agreement or document entered into between Customer and Hyland and within which these Professional Services Terms and Conditions are referenced or linked.
“Innovations” means all designs, processes, procedures, methods and innovations which are developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of this Agreement.
“Parties” means Hyland and Customer and each, a “Party”.
“Professional Services” means the services performed by Hyland under the Incorporating Document.
“Prohibited Act” means the (a) removal of any copyright, trademark or other proprietary rights notices that appear on or during the use of the Software, Work Products or Documentation; (b) sale, transfer, rental, lease or sub-license of any Software, Work Products or Documentation to any third party; (c) except as expressly permitted with respect to Software, Work Products, alter or modify the Software, Work Products or Documentation; (d) reverse engineering, disassembly, decompiling or attempt to derive source code from the Software, Work Products or Documentation, or preparing of derivative works therefrom; or (e) breach of any provision of Sections 9, 13 or 14 of these Terms and Conditions.
“Software” means Hyland’s proprietary software product(s) or solution for which Customer has obtained a valid license from Hyland or one of its authorized channel partners.
“Specifications” means the definitive, final functional specifications for Work Products, if any, produced by Hyland under the Incorporating Document. Specifications shall be considered Documentation, where used in this Agreement, in the case of Work Products.
“Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of services under this Agreement. If applicable, Work Products shall include any pre-configured templates or VBScripts which have been or may be created or otherwise provided by Hyland to Customer as part of the configuration of the advance capture module of the Software.
2. FULFILLMENT. Hyland will provide the Professional Services described in this Agreement at a time and on a schedule that is set forth in this Agreement or as mutually agreed upon by the Parties in writing. If any delays in the performance of the Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended. Hyland shall have no liability or responsibility for any costs or expenses resulting from such delays. In the event that performance of any milestone set forth in this Agreement is not met due to a delay solely caused by Hyland, and provided that such cause is not an event of force majeure, Hyland agrees, at no additional charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of the Professional Services. The Parties agree that the Professional Services or any Work Products described in the Incorporating Document that have been performed or developed, in whole or in part, by Hyland prior to the execution of this Agreement by the Parties nevertheless shall be covered by all terms and conditions of this Agreement.
3. CHANGES TO INCORPORATING DOCUMENT. Hyland or Customer may, at any time, reasonably request a change to the Incorporating Document. Any requested change that the Parties mutually accept (a “Change”) will be set forth in a written change order, prepared by Hyland and signed by both Parties, that specifically references the Incorporating Document. In the event the Parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the Incorporating Document, either Party may terminate this Agreement upon not less than thirty (30) days advance written notice to the other Party.
4. CUSTOMER’S OBLIGATIONS.
4.1 Assistance and Obligations. Customer agrees that it will cooperate with and assist Hyland in the performance of the Professional Services under this Agreement, will provide the resources specified in this Agreement and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of this Agreement. During any period in which Hyland is performing services hereunder, Customer shall provide to Hyland project team independent local (onsite) and remote (offsite) access through the use of secure connections such as a network connection, VPN connection or other similar methods and dedicated user accounts with appropriate privileges to the applicable Software, hardware or virtual machines allocated to the applicable Software system. Remote and local access will be granted for all provisioned environments, including production. Customer acknowledges that if it fails to provide assistance or perform or fulfill its obligations in accordance with this Agreement, Hyland’s ability to provide the Professional Services, meet the performance schedule set forth in this Agreement and keep services fees reasonably in line with any estimates given in this Agreement may be adversely affected.
4.2 Third Party Software Rights. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
4.3 Protection of Customer’s Systems. EXCEPT AS IT RELATES TO A HOSTED SOLUTION HOSTED BY HYLAND, CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.4 Safe Work Environment. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
5. SERVICES FEES. Except as otherwise provided in the Incorporating Document: (a) Hyland will charge services fees to Customer for the Professional Services at Hyland’s then-current standard list price for the applicable Professional Services and (b) Hyland shall invoice Customer for the Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees, and Customer shall pay all invoice amounts (other than Disputed Amounts) in full within thirty (30) days after the invoice date. Any estimates of fees or Working Hours required to complete the project are approximations of the anticipated amount of fees and time needed to complete the project. The actual number of Working Hours may vary.
6. TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Hyland for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of Professional Services under this Agreement (including fees and expenses relating to travel, meals, lodging and third party vendor registration requirements) in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in the Incorporating Document, Hyland shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears; and Customer shall pay in full each such invoice issued hereunder net thirty (30) days from the date Hyland issues such invoice.
8. TAXES AND GOVERNMENTAL CHARGES. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
9. WORK PRODUCTS.
9.1 Ownership. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. Hyland or its suppliers retain, on an exclusive basis, for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by Hyland during the performance of this Agreement, including, but not limited to, all patents, patent applications, copyrights, trademarks, other intellectual property rights and proprietary and confidential information rights in, relating to or associated with any Work Product, Innovation or Documentation. The Software, Documentation, and Work Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software, Innovations or Work Products are transferred to Customer. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in the Software, Documentation, or Work Products, except for the limited express rights granted in this Agreement.
9.2 Work Products License. Hyland grants to Customer a limited, non-exclusive, non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, or other Hyland products or services (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used, shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Hyland Core Product shall also apply to the Work Product.
9.3 Modification of Work Products.
(a) Form of Delivered Work Products. The form in which Hyland delivers Work Products will be determined by Hyland depending on the purpose and functionality of the Work Product.
(b) Configuration Work Products. If Hyland delivers a Work Product: (a) in the form of (i) source code which is compiled by tools in the Software to machine language form; or (ii) a script; or (b) created using the configuration tools in the Software (a “Configuration Work Product”), then Hyland grants to Customer the limited right to modify the Configuration Work Product, provided such modified Configuration Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
(c) Independent Work Products. If Hyland delivers a Work Product which is not a Configuration Work Product (an “Independent Work Product”), then, except as otherwise provided in the last sentence of this paragraph, Customer may not alter or modify such Independent Work Product. If Hyland delivers an Independent Work Product, and Customer desires to obtain the right to modify the Independent Work Product, then the Parties may mutually agree that Hyland shall deliver to Customer a copy of the format of the Independent Work Product that is necessary to enable Customer to complete its modifications, subject to and upon the payment by Customer to Hyland of any additional Professional Services fees as Hyland may charge to prepare and deliver such format. In such case, Hyland grants to Customer the right to modify, and if necessary, compile the delivered format of the Independent Work Product, provided such modified Independent Work Product is used only in compliance with the terms of the limited license to such Work Product granted under this Section.
9.4 Work Products Infringement Indemnification. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Work Products of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (i) is notified promptly after Customer receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of Customer or otherwise requires payment by Customer; (iii) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Work Products, or to replace the relevant portions of the Work Products with other equivalent, non-infringing portions.
(a) Removal and Refund. If Hyland is unable to accomplish either of the options set forth in Section 9.4(iv), Hyland shall remove the infringing portion of the Work Products and refund to Customer the services fees paid, if any, by Customer solely related to the creation and implementation of the infringing Work Products under this Agreement.
(b) Exclusions. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer and otherwise described in Section 9.4 that arise from: (i) use of the Work Products by Customer other than as expressly permitted by this Agreement; (ii) the combination of the Work Products with any product not furnished by Hyland to Customer; (iii) the modification or addition to of the Work Products other than by Hyland or any of its authorized channel partners specifically retained by Hyland to provide such modification or addition; or (iv) Customer’s business methods, processes, information or data.
(c) THIS SECTION 9.4 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE WORK PRODUCTS.
10. LIMITED WARRANTY FOR SERVICES AND WORK PRODUCTS.
10.1 Limited Warranty for Professional Services. For a period of sixty (60) days from the date of completion of Professional Services, Hyland warrants to Customer that such Professional Services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement.
10.2 Limited Warranty for Work Products. For a period of sixty (60) days from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specifications, or (c) misused or abused.
10.3 Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under Sections 10.1 and 10.2 shall be as follows: provided that, within the applicable sixty (60)-day period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies), or, in the case of a Work Product, either repair or replace the non-conforming Work Product, which may include the delivery of a commercially reasonable workaround for the non-conformity. If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time or determines that repair or replacement of the Work Product is not commercially reasonable, Customer’s sole and exclusive remedy shall be to terminate this Agreement, in which event Hyland will refund to Customer the portion of the services fees under this Agreement relating directly to such non-conforming Professional Services or to the creation and implementation of the non-conforming Work Product, in either case paid prior to the time of such termination.
10.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY WORK PRODUCTS, INNOVATIONS, INFORMATION OR PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PROFESSIONAL SERVICES OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
11. TERMINATION.
11.1 Generally. Except as otherwise stated in an Incorporating Document, or otherwise agreed by the parties in writing, Customer or Hyland may terminate this Agreement, for any reason, upon not less than thirty (30) days advance written notice to the other Party to such effect.
11.2 By Either Party. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, if the other Party has committed a breach of a material provision of this Agreement and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching Party; provided, that Hyland shall not be required to give Customer any opportunity to cure any breach in the case of any Prohibited Act, all of which are considered for all purposes to be material provisions of this Agreement.
11.3 Terminating this Agreement. In the event of any termination of this Agreement, Customer agrees to compensate Hyland for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Hyland has breached its obligations to perform such Professional Services and such breach is the cause of such termination.
11.4 Effects of Termination. Upon any termination of this Agreement in its entirety (other than by Hyland due to Customer’s breach), Customer’s license to use the Work Products provided in this Agreement shall survive according to its terms.
12. LIMITATIONS OF LIABILITY.
12.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
12.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, (INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO HYLAND BY CUSTOMER (LESS ANY REFUNDS OR CREDITS) FOR THE PROVISION OF THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. WITH RESPECT TO ANY PRODUCTS OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (SUCH AS EVALUATION SOFTWARE OR SERVICES), NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR DAMAGES.
13. EXPORT. Any Software, Work Products or Documentation provided under this Agreement are subject to export control laws and regulations of the United States and other jurisdictions. Customer agrees to comply fully with all relevant export control laws and regulations, including the regulations of the U.S. Department of Commerce and all U.S. export control laws, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations (EAR), to assure that the Software, Work Products or Documentation is not exported in violation of United States of America law or the laws and regulations of other jurisdictions. Customer agrees that it will not export or re-export the Software, Work Products or Documentation to any organizations or nationals in the United States embargoed territories of Cuba, Iran, North Korea, Sudan, Syria or any other territory or nation with respect to which the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, the E.U. and/or any further national states maintains any commercial activities sanctions program. Customer shall not use the Software, Work Products, or Documentation for any prohibited end uses under applicable laws and regulations of the United States and other jurisdictions, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America and other jurisdictions.
14. CONFIDENTIAL INFORMATION.
14.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not, to the knowledge of the recipient, bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to or use of the disclosing party’s information.
14.2 Each party agrees that, with respect to the Confidential Information of the other Party, or its affiliates, such Party as a recipient shall use the same degree of care to protect the other Party’s Confidential Information that such Party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under this Agreement. Customer agrees to take reasonable steps to protect all Work Products and Innovations, and any related Documentation, delivered by Hyland to Customer under Agreement from unauthorized copying or use. Each Party shall be liable and responsible for any breach of this Section 14 committed by any of such Party’s employees, agents, consultants, contractors or representatives.
14.3 The Parties recognize that a remedy at law for a breach of the provisions of this Agreement relating to Confidential Information and intellectual property rights will not be adequate for the aggrieved party’s protection and, accordingly, the aggrieved party shall have the right to seek, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.
15. NON-SOLICITATION; NO-HIRE. See Exhibit A attached hereto.
16. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit set forth below shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Australia Pty Ltd. Exhibit C
Hyland Software Brasil Ltda. Exhibit D
Hyland Colombia S.A.S. Exhibit E
Hyland France S.A.S. Exhibit F
Hyland Software Germany GmbH Exhibit G
Hyland Mexico S. de R.L. de C.V. Exhibit H
Hyland Software, Inc., if Customer is located in Peru Exhibit I
17. GENERAL TERMS.
17.1. Force Majeure. No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 17.1 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date under this Agreement is postponed or extended pursuant to this Section 17.1 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
17.2. Governing Law; Jurisdiction. See Exhibit B attached hereto.
17.3 Binding Effect; Assignments. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign, transfer or sublicense all of or part of this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a Party of this Agreement in its entirety to the surviving entity of an merger or consolidation or to any purchaser of substantially all of such Party’s assets that assumes in writing all of such Party’s obligations and duties under this Agreement. Any assignment made without compliance with the provisions of this section shall be null and void and of no force or effect. Notwithstanding anything to the contrary, Hyland may assign this Agreement to any Hyland affiliate without the consent of the other party upon written notice to the other party. Customer acknowledges that Hyland and/or any of its affiliates may fulfill any of Hyland’s obligations contemplated by this Agreement.
17.4 Subcontracting. Hyland may subcontract all or any part of the Professional Services, provided, that Hyland shall remain responsible to Customer for the provision of any subcontracted services.
17.5 Independent Contractor. The Parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any Professional Services.
17.6 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the Parties, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.
17.7 Integration. This Agreement, including any exhibit, schedule or agreement attached to this Agreement or referenced in this Agreement, sets forth the entire agreement and understanding of the Parties pertaining to the subject matter hereof and merges and supersedes all prior agreements, negotiations and discussions between them on the same subject matter. Any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from one Party to the other, are rejected and shall be null and void and of no force or effect unless included in a written amendment mutually signed by the Parties. To the extent there is a conflict between these Terms and Conditions and the Incorporating Document, the terms of these Terms and Conditions control.
17.8 Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
17.10 Certified Channel Partner. To the extent that Customer is a certified channel partner of Hyland’s, the Incorporating Document has been entered into by Customer for the benefit of an end user (an “End User”), and such End User has not previously entered into a separate contract with Hyland that governs the Professional Services provided under the Incorporating Document, the terms of this Section shall apply.
Customer and Hyland acknowledge and agree that Hyland is providing Professional Services to Customer for the benefit of End User; therefore, Customer (a) represents and warrants that it has entered into a binding contract with End User with respect to the project, under the terms of which Customer is permitted to retain Hyland as a subcontractor to provide the Professional Services contemplated pursuant to this Agreement; (b) agrees that the license to Work Products in Section 9.2 shall be sublicensed by Customer to the End User, subject to the restrictions stated therein and that other than the right to sublicense the Work Products, the license to the Work Products does not extend to Customer; and (c) agrees that it shall cause End User to comply with the provisions of this Agreement that are binding upon Customer as if End User was a Party, including by facilitating End User’s cooperation as requested by Hyland to provide the Professional Services and causing End User to abide by the restrictions and limitations contained herein. Further, Customer agrees that it shall be responsible for compliance with this Agreement by End User and expressly agrees to indemnify Hyland from and against all claims, liabilities, losses, damages and costs, including reasonable attorneys’ fees and court costs, suffered or incurred by Hyland arising from any breach by End User of any provisions of this Agreement.
17.11 Controlling Language. Hyland may make other versions of these Terms and Conditions available in other languages at this online location. This English language version of these Terms and Conditions controls over any version of the Terms and Conditions made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Terms and Conditions are not made available at this online location in the Other Language, this English language version controls over any other version of the Terms and Conditions that may be made available at this online location in another language.
Exhibit A
Non-Solicitation; No-Hire
Section 15 of the Agreement (Non-Solicitation; No-Hire) shall be the terms set forth on this Exhibit A, based upon the applicable Hyland company listed below:
“Restricted Individuals” means any person (i) with whom the hiring party had contact or who became known to the hiring party in connection with the Agreement; and (ii) who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party.
During the term of this Agreement and for one (1) year after the expiration or termination of the Agreement, neither Customer nor Hyland will (except to the extent either party receives the prior written consent of the other party):
(a) solicit for employment or for engagement as an independent contractor for the soliciting party or for any other third party a Restricted Individual, or otherwise encourage or assist any such Restricted Individual to leave the employ of the other party for any reason, in each case at any time during such Restricted Individual’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or
(b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is a Restricted Individual.
(c) A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to Section 15(a). The Parties agree that this provision survives the termination of the Agreement.
(d) Section 15(d) of the Agreement shall be the terms set forth below, based upon the applicable Hyland company listed below:
7. Hyland Software Canada ULC. If Hyland is Hyland Software Canada ULC, the following terms shall apply as Section 15 of the Agreement (Non-Solicitation; No-Hire):
During the term of this Agreement, Customer will not:
For any Hyland company not referenced in this Exhibit A, Section 15 (Non-Solicitation; No-Hire) shall not apply.
Exhibit B
Governing Law; Jurisdiction
Section 17.2 of the Agreement (Governing Law; Jurisdiction) shall be the terms set forth in this Exhibit B, based upon the applicable Hyland company listed below:
Exhibit C
Hyland Australia Pty Ltd. Additional Terms Exhibit
If Hyland is Hyland Software Australia Pty Ltd., this Exhibit C shall apply:
Australian Consumer Law for Users in Australia. The following language applies only if the purchase of the goods (the Software licenses) by Customer falls under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010):
The warranties provided by Hyland in this Agreement are in addition to other rights and remedies of Customer under the Australian Consumer Law and nothing in this Agreement is intended to limit these rights and remedies which cannot be excluded under the Australian Consumer Law. The goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
If Customer believes that it has an alleged non-conformance of warranty claim, such claim needs to be made within the applicable sixty (60) day warranty period and should be made to the warranty provider, Hyland, as follows: (1) in writing to Hyland at the following address: Attn: Legal Department, Hyland Software, Inc. 28500 Clemens Road, Westlake, Ohio 44145 (USA); or (2) in writing via email to Hyland at australianconsumerlaw@hyland.com.
Customer will bear the expense of making a warranty claim under the terms set forth on this Exhibit C.
If the purchase of the goods by Customer does not fall under the Australian Consumer Law, this Exhibit C shall not apply and the warranty and disclaimer otherwise stated in this Agreement shall control.
Exhibit D
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA, this Exhibit D shall apply:
Exhibit E
Hyland Colombia S.A.S. Additional Terms Exhibit
If Hyland is Hyland Colombia S.A.S., this Exhibit E shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
Exhibit F
Hyland France S.A.S. Additional Terms Exhibit
If Hyland is Hyland France S.A.S. this Exhibit F shall apply:
12.3 The Parties acknowledge that these limitations and exclusions of Hyland’s liability reflect the allocation of risk under the Agreement and the economical balance required by the Parties, that the Agreement would not have been entered into without these limitations and exclusions, and that these limitations and exclusions shall remain in effect even in the event of termination or rescission of the Agreement.
Exclusion of Unforeseeability: The Parties declare that they measure and accept the risks inherent to the performance of the Agreement. By express agreement, the Parties waive the application of the provisions of article 1195 of the French Civil code.
Exhibit G
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH, this Exhibit G shall apply:
At the election of Hyland, exercisable by written notice to Customer, any past due amounts (except Disputed Amounts) under any Hyland invoice shall bear interest at the rate of nine (9) percentage points above the then current ECB base rate per year from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of: (a) any default by Customer in the payment of any Undisputed Amounts, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment; or (b) any failure of the parties to resolve a dispute relating to a Disputed Amount within sixty (60) days (or such other period mutually agreed by the parties in writing) following Hyland’s receipt of the written notice timely disputing payment of such amounts, Hyland shall have the right to suspend or cease the provision of any services under the Agreement, unless and until such default shall have been cured or such dispute has been resolved, as applicable.
2. Section 9.2 of the Agreement shall be replaced in its entirety as follows:
Work Products License. Hyland grants to Customer a limited, non-exclusive and non-assignable license to use the Work Products only in connection with Customer’s authorized use of the Software, Hyland Cloud Service, or Add-On Services, or other Hyland product or service (collectively “Hyland Core Product”) with which such Work Product was delivered by Hyland for use by Customer. Customer may not: (a) make or authorize the making of copies of any Work Products; (b) remove any Hyland notices in the Work Products; (c) sell, transfer, rent, lease, time share or sublicense the Work Products to any third party; or (d) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from any Work Product for any reason unless expressively permitted by statutory law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer programs (see 69e of the Germany Copyright Act) or decompiling or reproducing the Software according to the provisions of see 69d of the German Copyright Act. Customer further agrees that, in connection with any use of the Work Products by Customer, the Work Products shall not be copied and installed on additional servers unless Customer has purchased a license therefore. All restrictions on use of the Hyland Core Product, including without limitation export restrictions and U.S. Government End User provisions, under the terms of the license agreement pursuant to which Customer received the right to use the Software with which the Work Products will be used shall apply to the Work Products. If the license to the Hyland Core Product with which such Work Product was delivered by Hyland for use by Customer terminates, Customer’s right to use the applicable Work Product shall also terminate. All post-termination rights and obligations with respect to the applicable Core Hyland Product shall also apply to the Work Product.
10.1 Limited Warranty for Professional Services. Hyland will perform the Professional Services in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes (a) non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under this Agreement; and (b) any Professional Services in the nature of staff augmentation.
10.2 Limited Warranty for Work Products. For a period of one (1) year from and including the date that Hyland has delivered a completed Work Product to Customer, Hyland warrants to Customer that such Work Product, when properly installed and properly used, will function in all material respects as described in the Specifications. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, any Work Product that has been (a) modified or added to by Customer or a third party, (b) used in combination with equipment or software other than that which is consistent with the Specification, or (c) misused or abused.
10.3 Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranty under this Section shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) repair or replace the non-conforming Work Product, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that repair or replacement of the Work Product is not commercially practicable, then terminate this Agreement with respect to the non-conforming Work Product, in which event, upon compliance by Customer with its obligations upon termination, Hyland will refund any portion of the services fees paid prior to the time of such termination with respect to the creation and implementation of such Work Product. The Customer's statutory warranty rights shall remain unaffected subject to the express provisions of this Agreement.
10.4 Disclaimer of Warranties. Section 10.4 is restated herein and tThe following is added to Section 10.4: Statutory warranty rights of the Customer shall remain unaffected.
10.5 The following is added as an additional Section 10.5:
To the extent the Professional Services provided under this Agreement constitute a contract for work (“Werkvertrag”), in this regard the statutory customer warranty provisions apply with the following restriction: Except in cases of intent or gross negligence on the part of Hyland the statutory warranty period amounts up to one year and begins upon acceptance of the respective Professional Service concerned.
Any warranty is specifically excluded with regard to non-performance issues caused as a result of a hardware or firmware malfunction or defect, software not developed by Hyland, incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations in connection with the project covered by this Agreement. In such cases Customer agrees to reimburse Hyland for time and materials for any Professional Services provided by Hyland at Customer’s request to remedy excluded non-performance problems.
HYLAND’S LIABILITY IS UNLIMITED IN CASE OF INTENT AND GROSS NEGLIGENCE. HYLAND IS LIABLE FOR SLIGHT NEGLIGENCE ONLY: (A) FOR DAMAGES RESULTING FROM INJURY TO LIFE, BODY OR HEALTH (B) FOR DAMAGES ARISING FROM THE BREACH OF A MATERIAL CONTRACTUAL OBLIGATION (I.E. AN OBLIGATION, THAT IS ABSOLUTELY NECESSARY FOR THE FULFILLMENT OF THIS AGREEMENT ON THE FULFILLMENT OF SUCH OBLIGATION THE CUSTOMER CAN REASONABLY RELY ON); IN CASE OF A BREACH OF A MATERIAL CONTRACTUAL OBLIGATION HYLAND'S LIABILITY IS LIMITED TO THE REPLACEMENT OF THE FORESEEABLE, TYPICALLY OCCURRING DAMAGE.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY IF HYLAND FRAUDULENTLY CONCEALS A DEFECT OR IF HYLAND HAS ACCEPTED A GUARANTEE FOR THE QUALITY OF THE SOFTWARE OR THE SERVICES. THE SAME APPLIES TO CLAIMS UNDER THE GERMAN PRODUCT LIABILITY ACT.
FURTHER LIABILITY OF HYLAND IS EXCLUDED.
Exhibit H
Hyland Mexico S. de R.L. de C.V. Additional Terms Exhibit
If Hyland is Hyland Mexico S. de R.L. de C.V., this Exhibit H shall apply:
For purposes of this Section 12.1, “Moral Damages” means those described in Article 1916 of the Mexican Federal Civil Code.
Exhibit I
Hyland Software, Inc. – Peru Additional Terms Exhibit
If Hyland is Hyland Software, Inc., but Hyland is providing services within the country of Peru, this Exhibit I shall apply:
NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, ITS SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR MORAL DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THIS AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
For purposes of this Section 12.1, “Moral Damages” means those described in articles 1984 and 1322 of the Civil Code.
The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.
Confidential - Ó 2023 Hyland Software, Inc.
Effective June 6th 2023 to June 7th 2023
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GESCHÄFTSBEDINGUNGEN FÜR PROFESSIONELLE DIENSTLEISTUNGEN
Ab dem Datum des Inkrafttretens des Vertragsdokuments sind diese Geschäftsbedingungen für Professionelle Dienstleistungen („Geschäftsbedingungen“) Teil des Vertragsdokuments (wie nachfolgend im Abschnitt 1 definiert).
„Arbeitsergebnisse“ bezeichnet alle Elemente in Form von Computersoftware, einschließlich Quellcode, Objektcode, Skripten und allen Komponenten oder Elementen des Vorstehenden oder Elemente, die mit den Konfigurationstools der Software erstellt wurden, sowie alle Konstruktionsdokumente im Zusammenhang mit Gegenständen in Form von Computersoftware, die jeweils von Hyland erstellt, entwickelt, entdeckt, konzipiert oder eingeführt werden und entweder allein oder in Verbindung mit anderen bei der Erbringung von Dienstleistungen im Rahmen dieser Vereinbarung funktionieren. Falls zutreffend, umfasst der Begriff „Arbeitsergebnisse“ vorkonfigurierte Vorlagen oder VBScripts, die von Hyland im Rahmen der Konfiguration des Vorauserfassungsmoduls der Software erstellt oder anderweitig bereitgestellt wurden.
„Arbeitsstunde“ bezeichnet die Dienste einer (1) Person für einen Zeitraum von einer (1) Stunde (oder eines Teils davon) während der regulären Geschäftszeiten.
„Bestrittene Beträge“ bezeichnet die Beträge auf einer Rechnung, für die der Kund Hyland vor dem Fälligkeitsdatum der Rechnung eine schriftliche Mitteilung zukommen lässt, in der sie ihre Einwände gegen die Zahlung dieser Beträge darlegt.
„Dokumentation“ bedeutet: (1) soweit verfügbar, die in der Software enthaltenen „Hilfedateien“ oder (2), falls in der Software keine solchen „Hilfedateien“ enthalten sind, eine andere von Hyland veröffentlichte Dokumentation, die sich auf die Funktions-, Betriebs- oder Leistungsmerkmale der Software bezieht.
"Hyland“ bedeutet die Hyland Gesellschaft, die Vertragspartei des Vertragsdokuments ist.
„Kunde“ bezeichnet das Unternehmen, welches das Vertragsdokument mit Hyland abgeschlossen hat. Falls es sich bei der Vertragspartei um einen zertifizierten Vertriebspartner von Hyland handelt, gilt Abschnitt 17.10 dieser Geschäftsbedingungen.
„Parteien“ bedeutet Hyland und Kunde gemeinsam (jeweils einzeln „Partei“)
„Professionelle Dienstleistungen“ bezeichnet alle Dienstleistungen, die von Hyland in Erfüllung eines Vertragsdokuments erbracht werden.
„Software“ bedeutet Hylands eigene Softwareprodukte oder Lösungen, für die der Kunde eine gültige Lizenz von Hyland oder einem autorisierten Vertriebspartner von Hyland erworben hat.
„Spezifikationen“ bezeichnet die endgültigen Funktionsspezifikationen für Arbeitsergebnisse, sofern vorhanden, die von Hyland im Rahmen eines Vertragsdokuments erstellt wurden. Spezifikationen gelten bei Arbeitsergebnissen als Dokumentation im Sinne dieser Vereinbarung.
„Verbotene Handlung“ bedeutet: (a) das Entfernen von Urheberrechts-, Marken- oder andere Schutzrechtshinweisen, die auf oder während der Verwendung der Software, der Arbeitsergebnisse oder der Dokumentation erscheinen; (b) der Verkauf, die Übertragung, die Vermietung, das Leasing oder die Unterlizenzierung der Software, der Arbeitsergebnisse oder der Dokumentation and Dritte; (c) sofern dies nicht ausdrücklich in Bezug auf Software oder Arbeitsergebnisse gestattet ist, die Abänderung oder die Modifikation der Software, der Arbeitsergebnisse oder der Dokumentation; (d) das Reverse-Engineering, das Disassemblieren, das Dekompilieren, der Versuch, den Quell-Code abzuleiten, oder Anfertigung von abgeleiteten Werken und zwar in Bezug auf die Software, die Arbeitsergebnisse oder die Dokumentation; oder (e) der Verstoß gegen die Bestimmungen der Abschnitte 9, 13 oder 14 dieser Geschäftsbedingungen.
„Vereinbarung“ bedeutet diese Geschäftsbedingungen gemeinsam mit dem Vertragsdokument.
„Vertragsdokument“ bezeichnet das Leistungsangebot, das Bestellformular oder eine andere zwischen dem Kunden und Hyland geschlossene Vereinbarung oder Dokument, in der/dem auf diese Geschäftsbedingungen für Professionelle Dienstleistungen verwiesen wird oder diese Geschäftsbedingungen verlinkt sind.
2. AUSFÜHRUNG. Hyland wird die in dieser Vereinbarung beschriebenen Professionellen Dienstleistungen wie in dieser Vereinbarung enthalten oder wie zu einem von den Parteien einvernehmlich und schriftlich gesondert festgelegten Zeitpunkt und Zeitplan ausführen. Wenn Verzögerungen bei der Ausführung solcher Professionellen Dienstleistungen ausschließlich auf falsche Informationen, falsche Annahmen oder Nichterfüllung der Verpflichtungen des Kunden im Zusammenhang mit dieser Vereinbarung zurückzuführen sind, kann der Terminplan für das betreffende Projekt verlängert werden. Hyland übernimmt keine Haftung oder Verantwortung für Kosten oder Aufwendungen, die sich aus solchen Verzögerungen ergeben. Für den Fall, dass die Erfüllung eines in dieser Vereinbarung festgelegten Meilensteins aufgrund einer Verzögerung, die ausschließlich von Hyland verursacht wurde, nicht erreicht wird und sofern dieser Grund kein Ereignis höherer Gewalt ist, stimmt Hyland zu, ohne zusätzliche Kosten für den Kunden, die zusätzlichen Ressourcen und das Personal bereitzustellen, welche erforderlich sind, um sicherzustellen, dass eine solche Verzögerung nicht zu Verzögerungen späterer Meilensteine oder des Abschlusses der Professionellen Dienstleistungen führt. Die Parteien vereinbaren, dass alle in dem Vertragsdokument genannten Professionellen Dienstleistungen oder Arbeitsergebnisse, die vor der Unterschrift dieser Vereinbarung durch die Parteien ganz oder teilweise erbracht oder entwickelt wurden, dennoch allen Bestimmungen und Bedingungen dieser Vereinbarung unterfallen.
3. ÄNDERUNGEN DES VERTRAGSDOKUMENTS. Jede Partei ist jederzeit berechtigt, eine angemessene Änderung eines Vertragsdokuments zu beantragen. Jede angeforderte Änderung, die die Parteien gegenseitig akzeptieren (eine „Änderung“), wird in einem schriftlichen Änderungsauftrag aufgeführt, der von Hyland erstellt und von beiden Parteien vereinbart und unterzeichnet wird, wobei ausdrücklich auf das entsprechende Vertragsdokument verwiesen wird. Falls sich die Parteien nicht auf eine vorgeschlagene Änderung oder einen vorgeschlagenen Änderungsauftrag einigen können und sich diese vorgeschlagene Änderung auf eine wesentliche Komponente des Projekts bezieht, die Gegenstand des entsprechenden Vertragsdokuments ist, kann jede Partei diese Vereinbarung mit einer Frist von mindestens dreißig (30) Tagen im Voraus durch schriftliche Mitteilung an die andere Partei kündigen.
4. VERPFLICHTUNGEN DES KUNDEN.
4.1 Unterstützung und Verpflichtungen. Der Kunde erklärt sich damit einverstanden, mit Hyland bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung zusammenzuarbeiten und Hyland zu unterstützen, die in dieser Vereinbarung angegebenen Ressourcen bereitzustellen und alle Verpflichtungen zu erfüllen, die der Kunde gemäß den Bestimmungen dieser Vereinbarung erfüllen muss. Während eines Zeitraums, in dem Hyland Professionelle Dienstleistungen im Rahmen dieser Vereinbarung erbringt, muss der Kunde dem Hyland-Projektteam einen unabhängigen lokalen (vor Ort) und Remote-Zugriff (außerhalb des Standorts) gewähren und zwar über sichere Verbindungen, wie etwa eine Netzwerkverbindung, eine VPN-Verbindung oder andere ähnliche Methoden, sowie spezieller Benutzerkonten mit entsprechenden Berechtigungen für die entsprechende Software, Hardware oder virtueller Maschinen, die dem entsprechenden Softwaresystem zugeordnet sind. Remote- und lokaler Zugriff wird für alle bereitgestellten Umgebungen, einschließlich der Produktionsumgebung, gewährt. Der Kunde nimmt zur Kenntnis, dass die Fähigkeit von Hyland, die Professionellen Dienstleistungen zu erbringen, den festgelegten Leistungsplan einzuhalten und die Dienstleistungsgebühren in angemessener Weise mit den in dieser Vereinbarung angegebenen Schätzungen in Übereinstimmung zu bringen, beeinträchtigt werden kann, wenn der Kunde es versäumt, Unterstützung zu leisten und seine Verpflichtungen aus dieser Vereinbarung zu erfüllen.
4.2 Drittsoftware Nutzungsrechte. Ungeachtet gegenteiliger Bestimmungen und sofern der Kunde Hyland auffordert, Professionelle Dienstleistungen für oder in Bezug auf Software von Drittanbietern zu erbringen, sichert der Kunde gegenüber Hyland zu, dass er alle erforderlichen Nutzungsrechte an Drittsoftware hat, um dies Hyland zu ermöglichen.
4.3 Schutz der Kundensysteme. Sofern es sich nicht um eine von Hyland gehostete Lösung handelt, erklärt sich der Kunde damit einverstanden, dass er allein dafür verantwortlich ist, geeignete Maßnahmen zu ergreifen, um seine Computersysteme zu isolieren und zu sichern oder anderweitig zu archivieren, einschließlich seiner Computer Programme, Daten und Dateien.
4.4 Sichere Arbeitsumgebung. Der Kunde ist dafür verantwortlich und stellt sicher, dass alle angemessenen und rechtlichen Gesundheits- und Sicherheitsvorkehrungen getroffen wurden und voll funktionsfähig sind, um Hyland-Mitarbeiter, Vertreter oder Subunternehmer während des Aufenthalts beim Kunden zu schützen.
5. DIENSTLEISTUNGSGEBÜHREN. Sofern in dem jeweiligen Vertragsdokument nicht anderweitig vereinbart: (a) berechnet Hyland dem Kunden Dienstleistungsgebühren für Professionelle Dienstleistungen zum jeweils aktuellen Standard-Listenpreis von Hyland für die entsprechenden Professionellen Dienstleistungen und (b) stellt Hyland dem Kunden monatlich nachträglich Gebühren für Professionelle Dienstleistungen in Rechnung, basierend auf der Anzahl der für die Fertigstellung des Projekts erforderlichen Arbeitsstunden und den geltenden Stundengebühren. Der Kunde ist verpflichtet, alle Rechnungsbeträge (mit Ausnahme von Bestrittenen Beträgen) innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen. Alle Schätzungen der Gebühren oder Arbeitsstunden, die für die Fertigstellung des Projekts erforderlich sind, sind ungefähre Angaben zu der voraussichtlichen Höhe der Gebühren und der Zeit, die für die Fertigstellung des Projekts erforderlich sind. Die tatsächliche Anzahl der Arbeitsstunden kann variieren.
6. REISEKOSTEN UND SPESEN. Alle üblichen und angemessenen Auslagen und Kosten, die Hyland im Zusammenhang mit der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung entstehen (einschließlich Gebühren und Kosten für Reisen, Mahlzeiten, Unterkunft und Registrierungsanforderungen für Drittanbieter) gemäß den geltenden internen Richtlinien von Hyland für die Erstattung von Kosten und Aufwendungen an seine Mitarbeiter, sind Hyland gegenüber zu erstatten. Sofern in einem entsprechenden Vertragsdokument nichts anderes vereinbart ist, stellt Hyland dem Kunden alle erstattungsfähigen Kosten und Aufwendungen monatlich nachträglich in Rechnung und der Kunde hat die Rechnung innerhalb von dreißig (30) Tagen nach Rechnungsdatum in voller Höhe zu begleichen.
8. STEUERN UND STAATLICHE ABGABEN.Alle Zahlungen im Rahmen dieser Vereinbarung verstehen sich exklusive aller anfallenden Steuern und staatlichen Abgaben (z. B. Zölle), die alle vom Kunden zu zahlen sind (mit Ausnahme der Steuern auf das Einkommen von Hyland). Für den Fall, dass der Kunde gesetzlich verpflichtet ist, Steuern einzubehalten, verpflichtet sich der Kunde, Hyland alle erforderlichen Belege und Unterlagen vorzulegen, die eine solche Zahlung belegen. Falls Hyland gesetzlich verpflichtet ist, Steuern oder staatliche Abgaben im Namen oder auf Rechnung des Kunden abzuführen, verpflichtet sich der Kunde, Hyland innerhalb von dreißig (30) Tagen nach Erhalt einer entsprechenden schriftlichen Benachrichtigung entsprechend zu entschädigen. Der Kunde erklärt sich damit einverstanden, Hyland vor jeder Überweisung, die Hyland im Namen oder auf Rechnung des Kunden vornehmen muss, gültige Steuerbefreiungsbescheinigungen vorzulegen, sofern diese Bescheinigungen erforderlich sind.
9. ARBEITSERGEBNISSE.
9.2 Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
9.3 Änderung von Arbeitsergebnissen.
(a) Form der gelieferten Arbeitsprodukte. Die Form, in der Hyland Arbeitsergebnisse liefert, wird von Hyland in Abhängigkeit vom Zweck und der Funktionalität des Arbeitsergebnisses festgelegt.
(b) Konfigurierte Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert: (a) in Form von (i) Quellcode, der von Tools in der Software in Maschinensprache kompiliert wird; oder (ii) einem Skript; oder (b) welches unter Verwendung der Konfigurations-Tools in der Software erstellt wird (ein „Konfiguriertes Arbeitsergebnis“), gewährt Hyland dem Kunden das beschränkte Recht, das Konfigurierte Arbeitsergebnis zu modifizieren, vorausgesetzt, ein solches modifiziertes Konfiguriertes Arbeitsergebnis wird nur in Übereinstimmung mit den Bedingungen der beschränkten Lizenz für ein solches Arbeitsergebnis verwendet, die gemäß diesem Abschnitt gewährt wird.
(c) Unabhängige Arbeitsergebnisse. Wenn Hyland ein Arbeitsergebnis liefert, bei dem es sich nicht um ein Konfiguriertes Arbeitsergebnis handelt (ein „Unabhängiges Arbeitsergebnis“), darf der Kunde dieses Unabhängige Arbeitsergebnis nicht verändern oder modifizieren, es sei denn, der letzte Satz dieses Abschnittes sieht etwas anderes vor. Wenn Hyland ein Unabhängiges Arbeitsergebnis liefert und der Kunde das Recht zur Modifizierung des Unabhängigen Arbeitsergebnisses erhalten möchte, können die Parteien einvernehmlich vereinbaren, dass Hyland dem Kunden eine Kopie des Formats des Unabhängigen Arbeitsergebnisses liefert, das zur Modifizierung des Unabhängigen Arbeitsergebnisses erforderlich ist, vorbehaltlich und nach Zahlung der zusätzlichen Dienstleistungsgebühren durch den Kunden an Hyland, die Hyland möglicherweise für die Erstellung und Lieferung eines solchen Formats berechnen kann. In diesem Fall gewährt Hyland dem Kunden das Recht, das gelieferte Format des Unabhängigen Arbeitsergebnisses zu modifizieren und gegebenenfalls zu kompilieren, vorausgesetzt, dass das modifizierte Unabhängige Arbeitsergebnis nur in Übereinstimmung mit den Bedingungen der gemäß diesem Abschnitt gewährten beschränkten Lizenz für dieses gewährte Arbeitsergebnis verwendet wird.
9.4 Entschädigung für die Verletzungen gewerblicher Schutzrechte durch Arbeitsergebnisse. Hyland erklärt sich damit einverstanden, den Kunden von jeglicher Haftung und allen Kosten, einschließlich angemessener Anwaltskosten, freizustellen, die sich aus oder im Zusammenhang mit Ansprüchen, Handlungen oder Verfahren Dritter ergeben, die gegen den Kunden aufgrund einer Verletzung oder widerrechtlichen Aneignung eines Patents, eines eingetragenen Urheberrechts oder einer eingetragenen Marke eines Dritten, durch die Arbeitsergebnisse erhoben werden, vorausgesetzt, dass Hyland: (i) sofort benachrichtigt wird, nachdem der Kunde über einen solchen Anspruch informiert wurde; (ii) die alleinige Verantwortung für die Verteidigung und etwaige Vergleichsverhandlungen in Bezug auf einen solchen Anspruch trägt (vorausgesetzt, dass Hyland einen solchen Anspruch nicht ohne die vorherige schriftliche Zustimmung des Kunden vergleicht, wenn ein solcher Vergleich eine Vereinbarung oder ein Eingeständnis oder eine Anerkennung einer Haftung oder eines Fehlverhaltens seitens des Kunden enthält oder anderweitig eine Zahlung durch den Kunden erfordert); (ii) die angemessene Kooperation des Kunden bei der Verteidigung oder Beilegung eines solchen Anspruchs erhält; und (iv) das Recht hat, beim Eintreten oder bei der Wahrscheinlichkeit (nach Ansicht von Hyland) eines Verstoßes oder einer widerrechtlichen Aneignung entweder dem Kunden das Recht zur weiteren Nutzung der Arbeitsergebnisse zu verschaffen, oder die betreffenden Teile der Arbeitsergebnisse durch andere gleichwertige, nicht rechtsverletzende Teile zu ersetzen.
10. BESCHRÄNKTE GEWÄHRLEISTUNG FÜR DIENSTLEISTUNGEN UND ARBEITSERGEBNISSE
10.1 Beschränkte Gewährleistungen für Professionelle Dienstleistungen. Für einen Zeitraum von sechzig (60) Tagen ab dem Datum des Abschlusses der Professionellen Dienstleistungen gewährleistet Hyland gegenüber dem Kunden, dass diese Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus, die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von sechzig (60) Tagen ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnis, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
10.3 Abhilfe. Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß der Abschnitte 10.1 und 10.2 lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Frist von sechsig (60) Tagen schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder angemessene Anstrengungen unternehmen, um die nicht konformen Professionellen Dienstleistungen erneut auszuführen und versuchen, die fehlerhaften Professionellen Dienstleistungen zu korrigieren. Im Falle der Nichtkonformität eines Arbeitsproduktes wird Hyland das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann.
Sofern Hyland feststellt, dass eine Behebung der Nichtkonformität nach angemessener Zeit nicht möglich ist oder dass Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, besteht das einzige Recht des Kunden in Kündigung dieser Vereinbarung. In diesem Fall erstattet Hyland dem Kunden den Teil der vor der Kündigung in Bezug auf die Erstellung und Implementierung eines solchen nichtkonformen Arbeitsergebnisses oder der nichtkonformen Professionellen Dienstleistungen bezahlten Dienstleistungsgebühren.
10.4 Gewährleistungsausschluss. MIT AUSNAHME DER VORSTEHENDEN AUSDRÜCKLICHEN BESTIMMUNGEN GEBEN HYLAND UND SEINE LIEFERANTEN KEINE GARANTIEN, ZUSICHERUNGEN ODER GEWÄHRLEISTUNGEN IN BEZUG AUF ARBEITSERGEBNISSE, INNOVATIONEN, INFORMATIONEN ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN. HYLAND UND SEINE LIEFERANTEN LEHNEN ALLE ANDEREN AUSDRÜCKLICHEN, STILLSCHWEIGENDEN UND GESETZLICHEN GARANTIEN ODER GEWÄHRLEISTUNGEN AB UND SCHLIESSEN DIESE AUS, EINSCHLIESSLICH, ABER NICHT BESCHRÄNKT AUF GARANTIEN/GEWÄHRLEISTUNGEN GEGEN RECHTSVERLETZUNGEN, DIE STILLSCHWEIGENDE GARANTIE/GEWÄHRLEISTUNGEN DER MARKTGÄNGIGKEIT UND DER EIGNUNG FÜR EINEN BESTIMMTEN ZWECK SOWIE GARANTIEN/GEWÄHRLEISTUNG, DIE SICH AUS DEM VERLAUF DER LEISTUNG, DEM HANDELSBRAUCH ODER DER HANDELSGEWOHNHEIT ERGEBEN ODER ALS SOLCHE ANGESEHEN WERDEN KÖNNEN. HYLAND UND SEINE LIEFERANTEN GARANTIEREN UND GEWÄHRLEISTEN NICHT, DASS DIE ERBRACHTEN PROFESSIONELLEN DIENSTLEISTUNGEN ODER ARBEITSERGEBNISSE DEN ANFORDERUNGEN DES KUNDEN ENTSPRECHEN ODER FEHLERFREI SIND ODER DASS DER BETRIEB DER SOFTWARE ODER DER ARBEITSERGEBNISSE, DIE IM RAHMEN DIESER VEREINBARUNG BEREITGESTELLT WERDEN, NICHT UNTERBROCHEN WIRD. SOFERN NICHT AUSDRÜCKLICH IN DIESER VEREINBARUNG ANGEGEBEN, ÜBERNIMMT HYLAND KEINERLEI HAFTUNG IN BEZUG AUF HARDWARE, FIRMWARE, SOFTWARE ODER DIENSTLEISTUNGEN VON DRITTEN.
11. KÜNDIGUNG.
11.1 Allgemein. Sofern nicht im Vertragsdokument oder anderweitig zwischen den Parteien schriftlich vereinbart, können der Kunde oder Hyland diese Vereinbarung aus beliebigen Gründen mit einer Frist von mindestens dreißig (30) Tagen schriftlich kündigen.
11.2 Kündigung durch eine der Parteien. Jede Partei kann diese Vereinbarung mit sofortiger Wirkung nach schriftlicher Mitteilung an die jeweils andere Partei in ihrer Gesamtheit kündigen, wenn die jeweils andere Partei gegen eine wesentliche Bestimmung diese Vereinbarung verstoßen hat und den Verstoß nicht innerhalb von dreißig (30) Tagen nach Erhalt der schriftlichen Mitteilung des Verstoßes durch die nicht verletzende Partei behoben hat; vorausgesetzt, dass Hyland nicht verpflichtet ist, dem Kunden die Möglichkeit zu geben, einen Verstoß im Falle einer Verbotenen Handlung zu beheben, die für alle Zwecke als wesentliche Bestimmungen dieser Vereinbarung betrachtet werden.
11.3 Kündigung dieser Vereinbarung. Im Falle jeder Kündigung dieser Vereinbarung ist der Kunde verpflichtet, alle Dienstleistungsgebühren, die sich auf von Hyland vor Wirksamkeit der Kündigung erbrachten Professionellen Dienstleistungen beziehen zu entrichten. Dies gilt nicht, sofern Hyland gegen eine Verpflichtung zur Erbringung von Professionellen Dienstleistung verstoßen hat und dieser Verstoß den Kündigungsgrund darstellt.
11.4 Auswirkungen der Kündigung. Bei jeder Beendigung dieser Vereinbarung (außer durch Hyland aufgrund eines Verstoßes des Kunden) bleibt die Lizenz des Kunden zur Nutzung der in dieser Vereinbarung enthaltenen Arbeitsergebnisse gemäß ihren Bedingungen bestehen.
12. HAFTUNGSBESCHRÄNKUNG.
12.1 WEDER DIE PARTEIEN NOCH IHRE VERBUNDENEN UNTERNEHMEN (UND IM FALLE VON HYLAND HYLAND’S LIEFERANTEN) SIND HAFTBAR, SEI ES AUFGRUND EINES VERTRAGS, EINER UNERLAUBTEN HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER EINES ANDEREN RECHTLICHEN GRUNDES FÜR INDIREKTE, ZUFÄLLIGE, BESONDERE ODER FOLGESCHÄDEN ODER FÜR ENTGANGENE EINNAHMEN, REPUTATION, EINSPARUNGEN ODER GEWINNE (MIT AUSNAHME DER IM RAHMEN DIESER VEREINBARUNG FÄLLIGEN GEBÜHREN), VERLUST ODER BESCHÄDIGUNG VON DATEN ODER PROGRAMMEN, KOSTEN FÜR ERSATZ ODER DIE BEHEBUNG VON SCHÄDEN ODER GESCHÄFTSUNTERBRECHUNGEN, SELBST WENN SIE AUF DIE MÖGLICHKEIT SOLCHER SCHÄDEN, VERLUSTE, AUSGABEN ODER KOSTEN HINGEWIESEN WURDEN.
12.2 DIE GESAMTE, KUMULATIVE HAFTUNG VON HYLAND (EINSCHLIESSLICH VERBUNDENEN UNTERNEHMEN UND LIEFERANTEN), DIE SICH AUS DIESER VEREINBARUNG ERGIBT, SEI ES AUS VERTRAG ODER UNERLAUBTER HANDLUNG (EINSCHLIESSLICH FAHRLÄSSIGKEIT) ODER AUS EINES ANDEREN RECHTLICHEN GRUNDES, ÜBERSTEIGT IN KEINEM FALL DEN GESAMTBETRAG, DEN DER KUNDE AN HYLAND FÜR DIE ERBRINGUNG DER DIENSTLEISTUNGEN, DIE DEN ANSPRUCH BEGRÜNDEN, INNERHALB DES ZWÖLF (12) MONATSZEITRAUMS, DER DEM ERSTEN ANSPRUCH BEGRÜNDENDEN EREIGNIS UNMITTELBAR VORAUSGEHT, TATSÄCHLICH GEZAHLT HAT (ABZÜGLICH ETWAIGER RÜCKERSTATTUNGEN ODER GUTSCHRIFTEN). IN BEZUG AUF PRODUKTE ODER PROFESSIONELLE DIENSTLEISTUNGEN, DIE DEM KUNDEN KOSTENLOS ZUR VERFÜGUNG GESTELLT WURDEN (WIE Z.B. EVALUIERUNGSSOFTWARE ODER -DIENSTLEISTUNGEN), HAFTEN WEDER HYLAND NOCH SEINE VERBUNDENEN UNTERNEHMEN ODER LIEFERANTEN FÜR SCHÄDEN.
13. EXPORT. Alle im Rahmen dieser Vereinbarung bereitgestellte Software, Arbeitsergebnisse oder Dokumentation, unterliegen den Exportkontrollgesetzen und -bestimmungen der Vereinigten Staaten und anderer Rechtsordnungen. Der Kunde verpflichtet sich, alle relevanten Exportkontrollgesetze und -bestimmungen, einschließlich der Bestimmungen des US-Handelsministeriums und aller US-Exportkontrollgesetze, einschließlich, aber nicht beschränkt auf die Exportverwaltungsbestimmungen des US-Handelsministeriums (EAR), vollständig einzuhalten, um sicherzustellen, dass die Software, die Arbeitsergebnisse oder die Dokumentation nicht unter Verstoß gegen die Gesetze der Vereinigten Staaten von Amerika oder die Gesetze und Vorschriften anderer Rechtsordnungen exportiert werden. Der Kunde verpflichtet sich, die Software, die Arbeitsergebnisse oder die Dokumentation nicht an Organisationen oder Staatsangehörige in den mit einem Embargo der Vereinigten Staaten belegten Gebieten wie Kuba, Iran, Nordkorea, Sudan, Syrien oder einem anderen Gebiet oder einer anderen Nation, für die das US-Handelsministerium, das US-Außenministerium, das US-Finanzministerium, die EU und/oder etwaige weitere Nationen ein Sanktionsprogramm für kommerzielle Aktivitäten unterhält, zu exportieren oder zu re-exportieren. Der Kunde darf die Software, die Arbeitsergebnisse oder die Dokumentation nicht für, gemäß den geltenden Gesetzen und Vorschriften der USA und anderer Gerichtsbarkeiten, verbotene Endanwendungen verwenden, einschließlich, aber nicht beschränkt auf Anwendungen im Zusammenhang mit nuklearer, chemischer oder biologischer Kriegsführung, Raketentechnologie (einschließlich unbemannter Luftfahrzeuge), militärischen Anwendungen oder nach den US Export Administration Regulations (EAR) oder anderen einschlägigen Gesetzen, Regeln oder Vorschriften der Vereinigten Staaten von Amerika und anderer Rechtsordnungen verbotenen oder eingeschränkten Verwendungen.
14. VERTRAULICHE INFORMATIONEN.
14.1 „Vertrauliche Informationen“ sind alle Informationen, die mit "proprietär" oder "vertraulich" gekennzeichnet sind, von denen die empfangende Partei weiß, dass sie vertraulich sind, oder die so beschaffen sind, dass sie üblicherweise zwischen Geschäftspartnern vertraulich sind, es sei denn, es gelten die Bestimmungen des nächsten Satzes. Zu den Vertraulichen Informationen gehören nicht Informationen: (a) die der Öffentlichkeit allgemein bekannt sind oder werden, ohne dass die empfangende Partei gegen diese Vereinbarung verstoßen hat, (b) in Bezug auf die die empfangende Partei nachweist, dass sie sich vor ihrer Offenlegung durch die offenlegende Partei im Besitz der empfangenden Partei befanden, (c) die die empfangende Partei von einem Dritten erhält, der gegenüber der offenlegenden Partei nicht durch Beschränkungen, Verpflichtungen oder Geheimhaltungspflichten gebunden ist, oder (d) in Bezug auf die die empfangende Partei nachweist, dass sie sie unabhängig und ohne Bezugnahme auf die Informationen der jeweils anderen Partei entwickelt hat.
14.3 Die Parteien erkennen an, dass ein Rechtsbehelf bei einem Verstoß gegen die Bestimmungen dieser Vereinbarung in Bezug auf Vertrauliche Informationen und Rechte an geistigem Eigentum nicht ausreicht, um die geschädigte Partei zu schützen, und dass die geschädigte Partei dementsprechend das Recht hat, zusätzlich zu allen anderen ihr zur Verfügung stehenden Rechtsbehelfen und Rechtsmitteln eine bestimmte Leistung oder einen Unterlassungsanspruch zu verlangen, um die Bestimmungen dieser Vereinbarung durchzusetzen.
15. ABWERBEVERBOT. EINSTELLUNGSVERBOT. Siehe Anlage A zu dieser Vereinbarung.
16. ZUSATZBESTIMMUNGEN. Wenn es sich bei Hyland um ein unten aufgeführtes Hyland-Unternehmen handelt, gelten die zusätzlichen oder alternativen Bedingungen, die in der unten aufgeführten Anlage – Zusatzbestimmungen aufgeführt sind:
Hyland-Unternehmen Zusatzbestimmungen
Hyland Software Germany GmbH Anlage C
17. ALLGEMEINE BESTIMMUNGEN
17.1 Höhere Gewalt. Ein Versäumnis, eine Verzögerung oder die Nichterfüllung einer Verpflichtung durch eine Partei (mit Ausnahme der Zahlung von Geldern) stellt keine Nichterfüllung oder Verletzung dar, soweit ein solches Versäumnis, eine solche Verspätung oder eine solche Nichterfüllung auf eine bestehende oder zukünftige Ursache zurückzuführen ist, die außerhalb der Kontrolle (einschließlich, aber nicht beschränkt auf: Maßnahmen oder Untätigkeit von Regierungs-, Zivil- oder Militärbehörden; Feuer; Streik, Aussperrung oder andere Arbeitskämpfe; Flut; Krieg; Aufruhr; Diebstahl; Erdbeben; Naturkatastrophe oder höhere Gewalt; Pandemien, Epidemien, nationale Notfälle, Nichtverfügbarkeit von Materialien oder Versorgungsunternehmen, Sabotage, Viren oder die Handlung, Fahrlässigkeit oder Versäumnis der anderen Partei) und außerhalb von Fahrlässigkeit oder vorsätzlichem Fehlverhalten der Partei liegt, der die Verzögerung oder Nichterfüllung sonst zur Last gelegt würde. Jede Partei, die sich auf eine der vorstehenden Ausführungen als Entschuldigung für die Nichterfüllung, den Verzug oder die verspätete Erfüllung berufen möchte, muss die andere Partei, sobald der Grund vorliegt, unverzüglich schriftlich über die Tatsachen informieren, die einen solchen Grund darstellen und wenn die Ursache nicht mehr besteht, dies der anderen Partei unverzüglich mitzuteilen. Dieser Abschnitt 17.1 schränkt in keiner Weise das Recht einer Partei ein, Ansprüche gegen Dritte wegen Schäden geltend zu machen, die aus diesen Gründen entstanden sind. Wenn ein Leistungstermin einer Partei im Rahmen dieser Vereinbarung gemäß diesem Abschnitt 17.1 um mehr als neunzig (90) Kalendertage verschoben oder verlängert wird, kann die andere Partei durch schriftliche Mitteilung während der Verschiebung oder Verlängerung und mindestens dreißig (30) Tage vor dem Datum des Inkrafttretens der Kündigung diese Vereinbarung kündigen.
17.2 Anwendbares Recht und Gerichtsstand. Siehe Anlage B zu dieser Vereinbarung.
17.3 Bindungswirkung; Abtretung. Diese Vereinbarung ist für die Parteien und ihre jeweiligen Rechtsnachfolger und zugelassenen Abtretungsempfänger bindend und kommt diesen zugute. Keine Partei darf diese Vereinbarung oder ihre Rechte oder Pflichten aus dieser Vereinbarung ganz oder teilweise an eine andere natürliche oder juristische Person ohne vorherige schriftliche Zustimmung der anderen Partei abtreten, übertragen oder unterlizenzieren, immer vorausgesetzt, dass eine solche Zustimmung nicht unbillig verweigert werden darf, wenn eine Partei diese Vereinbarung in ihrer Gesamtheit an den überlebenden Rechtsträger einer Fusion oder Konsolidierung oder an einen Käufer von im Wesentlichen allen Vermögenswerten dieser Partei überträgt, der alle Verpflichtungen dieser Partei aus dieser Vereinbarung schriftlich übernimmt. Jede Abtretung, die ohne Einhaltung der Bestimmungen dieses Abschnitts erfolgt, ist nichtig. Ungeachtet gegenteiliger Bestimmungen kann Hyland diese Vereinbarung ohne Zustimmung der anderen Partei durch schriftliche Mitteilung an die andere Partei an ein mit Hyland verbundenes Unternehmen abtreten. Der Kunde erkennt an, dass Hyland ein mit Hyland verbundenes Unternehmen und / oder eines seiner verbundenen Unternehmen die mit der Erfüllung der in dieser Vereinbarung vorgesehenen Verpflichtungen von Hyland beauftragen oder diese Verpflichtungen an ein solches verbundenes Unternehmen übertragen kann.
17.4 Vergabe von Unteraufträgen. Hyland kann alle oder einen Teil der Professionellen Dienstleistungen an Subunternehmer vergeben, vorausgesetzt Hyland bleibt gegenüber dem Kunden für die Erbringung von Dienstleistungen an Subunternehmer verantwortlich.
17.5 Unabhängige Vertragspartner. Die Parteien erkennen an, dass Hyland ein unabhängiger Auftragnehmer ist und dass Hyland für seine Verpflichtungen als Arbeitgeber für die Personen, die Professionelle Dienstleistungen erbringen, verantwortlich ist.
17.6 Dritte. Keine der hierin ausdrücklich oder stillschweigend enthaltenen Regelungen, ist dazu bestimmt oder so auszulegen, dass damit anderen natürlichen oder juristischen Person als den Parteien aufgrund dieser Vereinbarung Rechte oder Rechtsmittel übertragen oder gewährt werden. Drittanbieter von mit der Software gebündelten Softwareprodukten Drittbegünstigte im Hinblick auf diese Vereinbarung, soweit sie sich auf deren Softwareprodukte bezieht.
17.7 Integration. Diese Vereinbarung (einschließlich aller Anlagen oder Anhänge, die vorhanden sind oder auf die Bezug genommen wird) stellt die gesamte Vereinbarung zwischen den Parteien in Bezug auf den Gegenstand dieser Vereinbarung dar. Diese Vereinbarung tritt an die Stelle aller früheren Vereinbarungen, Verhandlungen und Gespräche zwischen den Parteien über denselben Gegenstand. Alle anderen Bedingungen, die von den Bedingungen dieser Vereinbarung abweichen oder sie ergänzen, unabhängig davon, ob sie in einer Bestellung oder einer anderen elektronischen, schriftlichen oder mündlichen Mitteilung einer Partei an die andere enthalten sind, werden zurückgewiesen und sind null und nichtig und ohne Kraft oder Wirkung, es sei denn, sie sind in einer schriftlichen Änderungsvereinbarung enthalten, die von den Parteien gegenseitig unterzeichnet wurde. Im Falle eines Widerspruchs zwischen diesen Geschäftsbedingungen und dem Vertragsdokument gehen die Bedingungen dieser Geschäftsbedingungen vor.
17.8 Salvatorische Klausel. Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig erklärt wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall wird die betroffene Bestimmung durch eine Bestimmung ersetzt, durch die die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung innerhalb der Grenzen des geltenden Rechts bzw. maßgeblicher Gerichtsentscheidungen bestmöglich erreicht werden.
17.9 Unternehmensrichtlinien. Hyland erkennt an, dass der Kunde Unternehmensrichtlinien unterhält, die für Personen gelten, die Dienstleistungen in den Räumlichkeiten oder im System des Kunden erbringen (zusammenfassend als "Unternehmensrichtlinien" bezeichnet). Bei der Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung wird sich Hyland in angemessener Weise bemühen, die Unternehmensrichtlinien einzuhalten, soweit diese Unternehmensrichtlinien auf die Erbringung solcher Professionellen Dienstleistungen anwendbar sind, nicht im Widerspruch zur Vereinbarung oder einem anderen zwischen Hyland und dem Kunden bestehenden Vertrag stehen und Hyland rechtzeitig vor der Beauftragung der Professionellen Dienstleistungen zur Verfügung gestellt wurden. Ungeachtet gegenteiliger Bestimmungen in den Unternehmensrichtlinien erkennt der Kunde an und erklärt sich damit einverstanden, dass Hyland nicht vertragsbrüchig oder anderweitig verantwortlich sein wird, wenn eine Hyland-Ressource die Unternehmensrichtlinien nicht einhält und ein solches Versäumnis nicht anderweitig eine Verletzung dieser Vereinbarung darstellt, und dass der Kunde als einziges Rechtsmittel die einzelne(n) Ressource(n), die für das Versäumnis verantwortlich ist/sind, sofort aus seinen Räumlichkeiten entfernen und verlangen kann, dass diese einzelne(n) Ressource(n) keine weiteren Professionellen Dienstleistungen für den Kunden erbringen.
17.10 Zertifizierter Vertriebspartner. Sofern der Kunde ein zertifizierter Vertriebspartner von Hyland ist, das Vertragsdokument vom Kunden zugunsten eines Endbenutzers (ein "Endbenutzer") abgeschlossen wurde und dieser Endbenutzer nicht zuvor einen separaten Vertrag mit Hyland abgeschlossen hat, der die im Rahmen Vertragsdokument erbrachten Professionellen Dienstleistungen regelt, gelten die Bestimmungen dieses Abschnitts.
Der Kunde und Hyland erkennen an und vereinbaren, dass Hyland die Professionellen Dienstleistungen für den Kunden für die Verwendung durch den Endbenutzer erbringt; daher (a) sichert der Kunde zu und gewährleistet, dass er einen verbindlichen Vertrag mit dem Endbenutzer in Bezug auf das Projekt abgeschlossen hat, gemäß dessen Bedingungen der Kunde Hyland als Unterauftragnehmer mit der Erbringung der Professionellen Dienstleistungen gemäß dieser Vereinbarung beauftragen darf; (b) stimmt der Kunde zu, dass die Lizenz für die Arbeitsergebnisse gemäß Abschnitt 9.2 vom Kunden an den Endnutzer unter den dort genannten Einschränkungen unterlizenziert wird und dass sich die Lizenz für die Arbeitsergebnisse mit Ausnahme des Rechts zur Unterlizenzierung nicht auf den Kunden erstreckt; und (c) stimmt der Kunde zu, dass er den Endnutzer dazu veranlasst, die Bestimmungen dieser Vereinbarung einzuhalten, die für den Kunden verbindlich sind, als wäre der Endnutzer eine Vertragspartei, einschließlich der Unterstützung von Hyland in Bezug auf geforderte Zusammenarbeit des Endnutzers bei der Erbringung der Professionellen Dienstleistungen und der Veranlassung des Endnutzers, sich an die hierin enthaltenen Beschränkungen und Einschränkungen zu halten. Des Weiteren erklärt sich der Kunde damit einverstanden, dass er für die Einhaltung dieser Vereinbarung durch den Endnutzer verantwortlich ist und erklärt sich ausdrücklich damit einverstanden, Hyland von allen Ansprüchen, Verbindlichkeiten, Verlusten, Schäden und Kosten, einschließlich angemessener Anwalts- und Gerichtskosten, freizustellen, die Hyland aufgrund eines Verstoßes des Endnutzers gegen die Bestimmungen dieser Vereinbarung erleidet.
17.11 Sprache. Hyland kann andere Versionen dieser Geschäftsbedingungen in anderen Sprachen an diesem Online-Standort zur Verfügung stellen. Diese englischsprachige Version dieser Geschäftsbedingungen hat Vorrang vor jeder Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird, wenn das Vertragsdokument in Englisch ist. Wenn das Vertragsdokument in einer anderen Sprache als Englisch verfasst ist (eine solche Sprache wird als "andere Sprache" bezeichnet), diese Geschäftsbedingungen aber nicht in dieser anderen Sprache an diesem Online-Standort zur Verfügung gestellt werden, hat diese englische Version Vorrang vor jeder anderen Version der Geschäftsbedingungen, die an diesem Online-Standort in einer anderen Sprache zur Verfügung gestellt wird.
Anlage A
Abwerbeverbot. Einstellungsverbot
Abschnitt 15 der Vereinbarung (Abwerbeverbot; Einstellungsverbot) entspricht den in dieser Anlage A aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
„ Betroffene Personen“ sind alle Personen, (i) mit denen die einstellende Partei Kontakt hatte oder die der einstellenden Partei im Zusammenhang mit der Vereinbarung bekannt wurden, und (ii) die Mitarbeiter der anderen Partei sind oder waren, jeweils zu einem beliebigen Zeitpunkt während des Beschäftigungsverhältnisses dieser Person bei der anderen Partei oder innerhalb eines Jahres (1), nachdem diese Person aufgehört hat, Mitarbeiter der jeweils anderen Partei zu sein.
Während der Laufzeit dieser Vereinbarung und bis zu einem (1) Jahr nach Ablauf oder Beendigung der Vereinbarung werden weder der Kunde noch Hyland (es sei denn, eine der Parteien erhält die vorherige schriftliche Zustimmung der anderen Partei) folgendes unternehmen:
Für alle Hyland-Gesellschaften, die nicht in dieser Anlage A aufgeführt sind, gilt Abschnitt 15 (Abwerbeverbot; Einstellungsverbot) nicht.
Anlage B
Anwendbares Recht, Gerichtsstand.
Abschnitt 17.2 der Vereinbarung (Anwendbares Recht; Gerichtsstand) entspricht den in dieser Anlage B aufgeführten Bedingungen, abhängig davon, welches Hyland-Unternehmen Partei der Vereinbarung ist:
Anlage C
Anwendbares Recht, Gerichtsstand.
Sofern es sich bei Hyland um Hyland Software Germany GmbH handelt, gilt die nachfolgende Anlage C:
Nach eigenem Ermessen von Hyland und nach schriftlicher Mitteilung an den Kunden sind alle überfälligen Rechnungsbeträge (mit Ausnahme der Bestrittenen Beträge) mit einem Zinssatz von neun (9) Prozentpunkten p.a. über den jeweils gültigen Zinssatz der EZB ab dem Fälligkeitsdatum bis zu dem Datum, an dem diese überfälligen Beträge und aufgelaufenen Zinsen vollständig gezahlt werden, zu verzinsen. Im Falle von: (a) Verzug des Kunden mit der Zahlung jeglicher Beträge (mit Ausnahme der Bestrittenen Beträge) und der Dauer dieses Verzugs von mindestens dreißig (30) Kalendertagen nach dem Fälligkeitsdatum einer solchen Zahlung; oder (b) wenn es den Parteien nicht gelingt, eine Streitigkeit in Bezug auf einen Bestrittenen Betrag innerhalb von sechzig (60) Tagen (oder innerhalb eines anderen von den Parteien schriftlich vereinbarten Zeitraums) nach Erhalt der schriftlichen Mitteilung über die rechtzeitige Beanstandung der Zahlung solcher Beträge durch Hyland beizulegen, hat Hyland das Recht, die Erbringung von Professionellen Dienstleistungen im Rahmen dieser Vereinbarung auszusetzen oder einzustellen, bis der Verzug behoben ist.
Lizenz für Arbeitsergebnisse. Hyland gewährt dem Kunden eine beschränkte, nicht exklusive und nicht übertragbare Lizenz zur Nutzung der Arbeitsergebnisse, jedoch nur in Verbindung mit der autorisierten Nutzung der Software, der Hyland Cloud Services, Add-On-Services, oder anderer Hyland-Produkte oder -Dienste (zusammen “ Hyland-Kernprodukte”), mit denen dieses Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde. Dem Kunden ist es untersagt: (a) Kopien von Arbeitsergebnissen anzufertigen oder deren Anfertigung zu genehmigen; (b) Hyland-Hinweise in den Arbeitsergebnissen zu entfernen; (c) die Arbeitsergebnisse an Dritte zu verkaufen, zu übertragen, zu vermieten, zu leasen, auf Zeit zu überlassen oder unterzulizenzieren; oder (d) die Arbeitsergebnisse aus irgendeinem Grund zu disassemblieren, zu dekompilieren, zurückzuentwickeln oder anderweitig zu versuchen, den Quellcode aus den Arbeitsergebnissen abzuleiten, es sei denn, dies ist ausdrücklich gesetzlich erlaubt, weil es unerlässlich ist, diese Informationen zu erhalten, um die Interoperabilität eines unabhängig erstellten Computerprogramms mit anderen Programmen zu erreichen (§ 69e UrhG) oder zur Dekompilierung oder Vervielfältigung der Software nach den Bestimmungen des § 69d UrhG. Der Kunde erklärt sich ferner damit einverstanden, dass im Zusammenhang mit der Nutzung der Arbeitsergebnisse durch den Kunden, die Arbeitsergebnisse nicht kopiert und auf zusätzlichen Servern installiert werden dürfen, es sei denn, der Kunde hat eine Lizenz dafür erworben. Alle Beschränkungen für die Nutzung der Hyland-Kernprodukte, einschließlich, jedoch nicht beschränkt auf Exportbeschränkungen und Endnutzerbestimmungen der US-Regierung, gemäß den Bedingungen des Lizenzvertrags, mit dem der Kunde das Recht zur Nutzung der Software, mit der die Arbeitsergebnisse verwendet werden, erhalten hat, gelten ebenfalls für die Arbeitsergebnisse. Wenn die Lizenz für die Hyland-Kernprodukte, mit der ein solches Arbeitsergebnis von Hyland zur Nutzung durch den Kunden geliefert wurde, endet, erlischt auch das Recht des Kunden zur Nutzung des betreffenden Arbeitsergebnisses. Alle nach der Kündigung bestehenden Rechte und Pflichten in Bezug auf die jeweiligen Hyland-Kernprodukte, gelten auch für die Arbeitsergebnisse.
10.1 Beschränkte Gewährleistung für Professionelle Dienstleistungen. Hyland gewährleistet gegenüber dem Kunden, dass die Professionellen Dienstleistungen in fachmännischer Weise und im Wesentlichen in Übereinstimmung mit den Industriestandards erbracht wurden. Diese Gewährleistung schließt insbesondere Leistungsprobleme aus (a), die auf falsche Daten oder falsche Verfahren zurückzuführen sind, die vom Kunden oder einem Dritten verwendet oder bereitgestellt wurden, oder auf die Nichterfüllung seiner Verpflichtungen aus dieser Vereinbarung durch den Kunden; oder (b), die in Form von Personalaufstockung erbracht werden.
10.2 Beschränkte Gewährleistung für Arbeitsergebnisse. Für einen Zeitraum von einem (1) Jahr ab und einschließlich des Datums, an dem Hyland dem Kunden ein fertiges Arbeitsergebnis geliefert hat, gewährleistet Hyland dem Kunden, dass dieses Arbeitsergebnis bei ordnungsgemäßer Installation und ordnungsgemäßer Nutzung in allen wesentlichen Aspekten wie in der Spezifikation beschrieben funktioniert. Die Bestimmungen dieser Gewährleistung gelten nicht und Hyland übernimmt keine Haftung für eine Nichtkonformität für Arbeitsergebnisse, die (a) vom Kunden oder einem Dritten modifiziert oder ergänzt wurden, (b) in Kombination mit Geräten oder Software verwendet wurden, die nicht mit der Spezifikation übereinstimmen, oder (c) falsch oder missbräuchlich verwendet wurden.
Die einzige Verpflichtung von Hyland und das einzige und ausschließliche Recht des Kunden bei Nichteinhaltung der ausdrücklichen beschränkten Gewährleistung gemäß diesem Abschnitt lauten wie folgt: Sofern der Kunde Hyland innerhalb der geltenden Gewährleistungsfrist schriftlich über die Nichtkonformität benachrichtigt, wird Hyland entweder (a) das nicht konforme Arbeitsergebnis reparieren oder ersetzen, was die Lieferung einer angemessenen Umgehungslösung für die Nichtkonformität beinhalten kann; oder (b) wenn Hyland feststellt, dass eine Reparatur oder ein Ersatz des Arbeitsergebnisses wirtschaftlich nicht praktikabel ist, dieser Vereinbarung in Bezug auf das nicht konforme Arbeitsergebnis kündigen; in diesem Fall erstattet Hyland, sofern der Kunde seinen Verpflichtungen bei der Kündigung nachkommt, einen Teil der vor dem Zeitpunkt der Kündigung bezahlten Dienstleistungsgebühren in Bezug auf die Erstellung und Implementierung eines solchen Arbeitsergebnisses. Die gesetzlichen Gewährleistungsrechte des Kunden bleiben vorbehaltlich der ausdrücklichen Bestimmungen dieser Vereinbarung unberührt.
10.4 Gewährleistungsausschluss.
Abschnitt 10.4 wird wie folgt ergänzt: Die gesetzlichen Gewährleistungsrechte des Kunden bleiben unberührt.
10.5 Folgendes wird als neuer Abschnitt 10.5 ergänzt:
In dem Maße, in dem die im Rahmen der vorliegenden Vereinbarung erbrachten Professionellen Dienstleistungen einen Werkvertrag darstellen, gelten in dieser Hinsicht die gesetzlichen Gewährleistungsbestimmungen mit folgender Einschränkung: Ausgenommen bei vorsätzlichem oder grob fahrlässigem Verhalten seitens Hyland wird die gesetzliche Gewährleistungsfrist auf ein Jahr beschränkt, beginnend mit der Abnahme der entsprechenden Professionellen Dienstleistungen.
Diese Gewährleistung schließt ausdrücklich nicht mit der Leistungsausführung zusammenhängende Probleme aus, die als Folge von Fehlfunktionen oder Mängeln bei Hard- oder Firmware, von Softwareprogrammen, die nicht von Hyland entwickelt wurden, von unrichtigen Daten oder unrichtigen Verfahren, die vom Kunden oder von Dritten verwendet bzw. vorgenommen werden, oder der Nichterfüllung seiner Verpflichtungen in Verbindung mit dem von dieser Vereinbarung erfassten Projekt von Seiten des Kunden entstehen. In diesen Fällen verpflichtet sich der Kunde, Hyland den Zeit- und Materialaufwand für Professionelle Dienstleistungen zu erstatten, die von Hyland auf Ersuchen des Kunden um Abhilfe bei nicht mit den Leistungen zusammenhängenden und damit ausgeschlossenen Problemen ausgeführt werden.
DIE HAFTUNG VON HYLAND IST BEI VORSATZ UND GROBER FAHRLÄSSIGKEIT UNBESCHRÄNKT. BEI LEICHTER FAHRLÄSSIGKEIT HAFTET HYLAND NUR: (A) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG DES LEBENS, DES KÖRPERS ODER DER GESUNDHEIT ERGEBEN, (B) FÜR SCHÄDEN, DIE SICH AUS DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT (D.H. EINER PFLICHT, DEREN ERFÜLLUNG DIE ORDNUNGSGEMÄSSE DURCHFÜHRUNG DES VERTRAGES ÜBERHAUPT ERST ERMÖGLICHT UND AUF DEREN EINHALTUNG DER KUNDE REGELMÄSSIG VERTRAUEN DARF) ERGEBEN; IM FALLE DER VERLETZUNG EINER WESENTLICHEN VERTRAGSPFLICHT IST DIE HAFTUNG VON HYLAND AUF DEN ERSATZ DES VORHERSEHBAREN, TYPISCHERWEISE EINTRETENDEN SCHADENS BEGRENZT.
DIE VORSTEHENDEN HAFTUNGSBESCHRÄNKUNGEN GELTEN NICHT, WENN HYLAND EINEN MANGEL ARGLISTIG VERSCHWIEGEN ODER EINE GARANTIE FÜR DIE BESCHAFFENHEIT DER SOFTWARE ÜBERNOMMEN HAT. GLEICHES GILT FÜR ANSPRÜCHE NACH DEM PRODUKTHAFTUNGSGESETZ.
EINE WEITERGEHENDE HAFTUNG VON HYLAND IST AUSGESCHLOSSEN.
Eine Abtretung von Geldforderungen nach § 354a HGB bleibt hiervon unberührt.
Wenn eine Bestimmung dieser Vereinbarung von einer zuständigen Instanz für undurchsetzbar oder ungültig befunden wird, führt dies nicht zur Undurchsetzbarkeit oder Ungültigkeit der gesamten Vereinbarung. In einem solchen Fall werden die Parteien die betroffene Bestimmung durch eine gemeinsame Vereinbarung in einer Weise ändern, in der die Zielsetzungen dieser undurchsetzbaren oder ungültigen Bestimmung bestmöglich erreicht werden
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Confidential - Ó 2023 Hyland Software, Inc.
Effective June 6th 2023 to June 7th 2023
DownloadTÉRMINOS Y CONDICIONES DE SERVICIOS PROFESIONALES
A la Fecha de Entrada en Vigor del Documento de Incorporación, estos Términos y Condiciones de Servicios Profesionales (estos "Términos y Condiciones") forman parte del Documento de Incorporación (como definido abajo en la Sección 1).
1. TÉRMINOS DEFINIDOS.
"Contrato" significa estos Términos y Condiciones, junto con el Documento de Incorporación.
"Cliente" significa la entidad que ha suscrito el Documento de Incorporación con Hyland. En el caso de que la contraparte sea un distribuidor autorizado de Hyland, se aplicará la Sección 17.10 de estos Términos y Condiciones.
"Importes en Disputa" significan los importes establecidos en cualquier factura en las que el Cliente haya notificado por escrito a Hyland, antes de la fecha de vencimiento de la factura, exponiendo las objeciones del Cliente, con un detalle razonable, a dichos importes.
"Documentación" significa: (a) en la medida en que estén disponibles, los "Archivos de Ayuda" incluidos en el Software, o (b) si no se incluyen "Archivos de Ayuda" en el Software, cualquier otra documentación publicada por Hyland, en cada caso, que esté relacionada con las características funcionales, operativas o de rendimiento del Software.
"Hyland" significa la compañía Hyland que forma parte del Documento de Incorporación.
"Documento de Incorporación" significa la Propuesta de Servicios, Hoja de Pedido u otro acuerdo o documento suscrito entre el Cliente y Hyland y dentro del cual se haga referencia o se enlace a estos Términos y Condiciones de Servicios Profesionales.
"Innovaciones" significan todos los diseños, procesos, procedimientos, métodos e innovaciones que son desarrolladas, descubiertas, concebidas o introducidas por Hyland, trabajando solo o en colaboración con otros, durante la ejecución del presente Contrato.
"Partes" significan Hyland y el Cliente y cada uno, una "Parte".
"Servicios Profesionales" significan los servicios prestados por Hyland en virtud del Documento de Incorporación.
"Acto Prohibido" significa (a) eliminación de cualquier aviso de copyright, marca comercial u otros derechos de propiedad que aparezcan durante el use del Software, de los Productos de Trabajo o de la Documentación ; (b) venta, transferencia, arrendamiento o sublicencia de cualquier Software, Productos de Trabajo o Documentación a un tercero; (c) salvo lo expresamente permitido con respecto al Software, los Productos de Trabajo, alterar o modificar el Software, los Productos de Trabajo o la Documentación; (d) realizar ingeniería inversa, desmontar, descompilar o intentar obtener el código fuente del Software, los Productos de Trabajo o la Documentación, o preparar trabajos derivados de los mismos; o (e) incumplir cualquier disposición de las Secciones 9, 13 o 14 de estos Términos y Condiciones.
"Software" significa el/los producto(s) o solución de software propiedad de Hyland para los que el Cliente ha obtenido una licencia válida de Hyland o de uno de sus distribuidores autorizados.
"Especificaciones" significan las especificaciones funcionales definitivas y finales de los Productos de Trabajo, en su caso, elaboradas por Hyland en virtud del Documento de Incorporación. Las Especificaciones deben ser consideradas Documentación, cuando se utilicen en el presente Contrato, en el caso de los Productos de Trabajo.
"Hora de Trabajo" significa los servicios de una (1) persona por un período de una (1) hora (o cualquier parte de la misma) durante el horario laboral habitual.
"Productos de Trabajo" significan todos los elementos que tengan la naturaleza de un producto de software, incluidos el código fuente, el código objeto, los scripts y cualquier componente o elemento de éstos, o los elementos creados utilizando las herramientas de configuración del Software, junto con todos y cada uno de los documentos de diseño asociados a los elementos que tengan la naturaleza de un producto de software, en cada caso creados, desarrollados, descubiertos, concebidos o introducidos por Hyland, trabajando solo o en colaboración con otros, en la prestación de los servicios previstos en el presente Contrato. Si es aplicable, los Productos de Trabajo incluirán cualquier plantilla preconfigurada o VBScripts que hayan sido o puedan ser creados o proporcionados de otro modo por Hyland al Cliente como parte de la configuración del módulo de captura avanzada del Software.
2. CUMPLIMIENTO. Hyland prestará los Servicios Profesionales descritos en el presente Contrato en el momento y según el cronograma establecidos en el presente Contrato o según lo acordado mutuamente por las Partes por escrito. Si se produjera algún retraso en la prestación de los Servicios Profesionales únicamente como consecuencia de cualquier información incorrecta, suposición incorrecta o incumplimiento por parte del Cliente de sus obligaciones en relación con el presente Contrato, podrá ampliarse el calendario de ejecución del proyecto aplicable. Hyland no tendrá responsabilidad alguna por los costes o gastos derivados de dichos retrasos. En caso de que no se cumpla algún hito establecido en el presente Contrato debido a un retraso causado exclusivamente por Hyland, y siempre que dicha causa no sea un caso de fuerza mayor, Hyland se compromete, sin cargo adicional para el Cliente, a destinar los recursos y el personal adicionales que sean necesarios para garantizar que dicho retraso no provoque el retraso de hitos posteriores o la finalización de los Servicios Profesionales. Las Partes acuerdan que los Servicios Profesionales o cualesquiera Productos de Trabajo descritos en el Documento de Incorporación que hayan sido realizados o desarrollados, en su totalidad o en parte, por Hyland antes de la ejecución de este Contrato, estarán cubiertos por todos los términos y condiciones de este Contrato.
3. CAMBIOS AL DOCUMENTO DE INCORPORACIÓN. Hyland o el Cliente podrán, en cualquier momento, solicitar razonablemente una modificación al Documento de Incorporación. Cualquier cambio que las Partes acepten mutuamente (en adelante "Cambio") se establecerá por un escrito preparado por Hyland y firmada por ambas Partes, que haga referencia específica al Documento de Incorporación. En caso de que las Partes no puedan llegar a un acuerdo mutuo sobre un Cambio propuesto o una orden de cambio propuesta, y dicho Cambio propuesto se refiera a un componente material del proyecto objeto del Documento de Incorporación, cualquiera de las Partes podrá rescindir el presente Contrato previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
4. OBLIGACIONES DEL CLIENTE.
4.1 Asistencia y obligaciones. El Cliente acepta que cooperará con Hyland y le prestará asistencia en la prestación de los Servicios Profesionales en virtud del presente Contrato, proporcionará los recursos especificados en el presente Contrato y realizará o cumplirá todas las obligaciones que el Cliente deba realizar o cumplir en virtud de los términos del presente Contrato. Durante cualquier periodo en el que Hyland preste servicios en virtud del presente, el Cliente proporcionará al equipo de proyecto de Hyland acceso local (in situ) y remoto (fuera de las instalaciones) independiente mediante el uso de conexiones seguras, como una conexión de red, una conexión VPN u otros métodos similares, y cuentas de usuario dedicadas con los privilegios adecuados al Software, hardware o máquinas virtuales aplicables asignados al sistema de Software aplicable. Se concederá acceso remoto y local para todos los entornos aprovisionados, incluida la producción. El Cliente reconoce que, si no presta asistencia o no realiza o cumple sus obligaciones de conformidad con el presente Contrato, la capacidad de Hyland para prestar los Servicios Profesionales, cumplir el calendario de rendimiento establecido en el presente Contrato y mantener las tarifas de servicios razonablemente en línea con cualquier estimación realizada en el presente Contrato puede verse afectada negativamente.
4.2 Derechos de Software de Terceros. A pesar de cualquier condición contraria, si el Cliente solicita a Hyland que preste Servicios Profesionales en o con respecto a cualquier software de terceros, el Cliente declara y garantiza a Hyland que el Cliente tiene todos los derechos necesarios para permitir que Hyland lo haga.
4.3 Protección de los Sistemas del Cliente. EXCEPTO EN LO RELATIVO A UNA SOLUCIÓN DE ALOJAMIENTO POR HYLAND, EL CLIENTE ENTIENDE QUE ES EL ÚNICO RESPONSABLE DE TOMAR LAS MEDIDAS ADECUADAS PARA AISLAR Y REALIZAR COPIAS DE SEGURIDAD O ARCHIVAR DE OTRO MODO SUS SISTEMAS INFORMÁTICOS, INCLUIDOS SUS PROGRAMAS INFORMÁTICOS, DATOS Y ARCHIVOS.
4.4 Entorno de Trabajo Seguro. El Cliente será responsable y se asegurará de que, mientras los empleados, agentes o subcontratistas de Hyland se encuentren en las instalaciones del Cliente, se tomen todas las precauciones legales y adecuadas en materia de salud y seguridad y estén plenamente operativas para proteger a dichas personas.
5. TARIFAS DE SERVICIOS. Salvo que se estipule lo contrario en el Documento de Incorporación: (a) Hyland cobrará al Cliente las tarifas de servicios por los Servicios Profesionales al precio de lista estándar de Hyland vigente en ese momento para los Servicios Profesionales aplicables y (b) Hyland facturará al Cliente las tarifas por los Servicios Profesionales mensualmente, a mes vencido, en función del número de Horas de trabajo necesarias para completar el proyecto y las tarifas por hora aplicables, y el Cliente abonará todos los importes de las facturas (salvo los Importes en Disputa) en su totalidad en un plazo de treinta (30) días a partir de la fecha de la factura. Cualquier estimación de las tarifas o de las Horas de Trabajo necesarias para completar el proyecto son aproximaciones del importe previsto de las tarifas y del tiempo necesario para completar el proyecto. El número real de Horas de Trabajo puede variar.
6. VIAJES Y GASTOS. El Cliente será responsable de pagar o reembolsar a Hyland todos los costes y gastos de bolsillo razonables en los que incurra Hyland en relación con la prestación de Servicios Profesionales en virtud del presente Contrato (incluidos las tarifas y gastos relativos a viajes, comidas, alojamiento y requisitos de registro de proveedores terceros) de conformidad con la política interna aplicable de Hyland para el reembolso de costes y gastos a sus empleados. Salvo que se estipule lo contrario en el Documento de Incorporación, Hyland facturará al Cliente todos los costes y gastos reembolsables mensualmente, a mes vencido; y el Cliente pagará en su totalidad cada una de las facturas emitidas en virtud del presente Contrato en un plazo neto de treinta (30) días a partir de la fecha en que Hyland emita dicha factura.
7. DETERMINADOS RECURSOS EN CASO DE IMPAGO O RETRASO EN EL PAGO. A elección de Hyland, que podrá ejercer mediante notificación por escrito al Cliente, cualquier importe vencido (salvo los Importes en Disputa) devengarán intereses a un tipo del uno y medio por ciento (1,5%) mensual (o, si es inferior, el tipo máximo legalmente exigible) desde la fecha de vencimiento hasta la fecha en que dichos importes vencidos y los intereses devengados se abonen en su totalidad. En caso de (a) incumplimiento por parte del Cliente en el pago de cualquier importe (salvo los Importes en Disputa) , cuyo incumplimiento continúe sin subsanarse durante al menos treinta (30) días naturales después de la fecha de vencimiento de dicho pago o (b) incapacidad de las Partes para resolver una disputa relacionada con un Importe en Disputa en un plazo de sesenta (60) días (o cualquier otro período acordado mutuamente, por escrito, por las Partes) tras la recepción por parte de Hyland de una notificación por escrito del Cliente en la que se impugne puntualmente el pago de dichos importes, Hyland tendrá derecho a suspender o cesar la prestación de cualquier Servicio Profesional el presente Contrato a menos que se haya subsanado dicho incumplimiento o se haya resuelto dicha disputa.
8. IMPUESTOS Y CARGAS GUBERNAMENTALES. Todos los pagos realizados en virtud del presente Contrato excluyen todos los impuestos y cargos gubernamentales aplicables (como aranceles), todos los cuales correrán a cargo del Cliente (salvo los impuestos sobre los ingresos de Hyland). En caso de que el Cliente esté obligado por ley a retener impuestos, el Cliente acepta proporcionar a Hyland todos los recibos y la documentación necesarios que justifiquen dicho pago. Si Hyland está obligado por ley a remitir cualquier impuesto o carga gubernamental en nombre o por cuenta del Cliente, el Cliente acepta reembolsar a Hyland en un plazo de treinta (30) días a partir de la fecha en que Hyland notifique al Cliente por escrito dicha remisión. El Cliente acepta proporcionar a Hyland certificados válidos de exención de impuestos antes de cualquier envío que Hyland deba realizar en nombre o por cuenta del Cliente, cuando dichos certificados sean aplicables.
9. PRODUCTOS DE TRABAJO.
9.1 Propiedad. EL PRESENTE CONTRATO NO ES UN CONTRATO DE TRABAJO POR ENCARGO. Hyland o sus proveedores conservan, con carácter exclusivo, para sí o para ellos, todos los derechos, títulos e intereses sobre cualquier propiedad intelectual desarrollada, descubierta, concebida o introducida por Hyland durante la ejecución del presente Contrato, incluidas, entre otras, todas las patentes, solicitudes de patentes, derechos de autor, marcas comerciales, otros derechos de propiedad intelectual y derechos de información confidencial y de propiedad sobre cualquier Producto de Trabajo, Innovación o Documentación, o relacionados con ellos. El Software, la Documentación y los Productos de Trabajo están protegidos por leyes de derechos de autor y tratados internacionales sobre derechos de autor, así como por otras leyes y tratados sobre propiedad intelectual. No se transfiere al Cliente ningún derecho de propiedad sobre el Software, las Innovaciones o los Productos de Trabajo. El Cliente acepta que nada de lo dispuesto en el presente Contrato o en los documentos asociados le otorga derecho, titularidad o interés alguno sobre el Software, la Documentación o los Productos de Trabajo, salvo los derechos expresos limitados que se conceden en el presente Contrato.
9.2 Licencia de los Productos de Trabajo. Hyland concede al Cliente una licencia limitada, no exclusiva y no transferible para utilizar los Productos de Trabajo únicamente en relación con el uso autorizado por parte del Cliente del Software o de otros productos o servicios de Hyland (conjuntamente, "Producto Principal de Hyland") con los que Hyland haya entregado dicho Producto de Trabajo para su uso por parte del Cliente. El Cliente no podrá: (a) realizar ni autorizar la realización de copias de ningún Producto de Trabajo; (b) eliminar ningún aviso de Hyland en los Productos de Trabajo; (c) vender, transferir, alquilar, contrato de leasing, tiempo compartido o sublicenciar los Productos de Trabajo a terceros; o (d) desensamblar, descompilar, realizar ingeniería inversa o intentar obtener el código fuente de cualquier Producto de Trabajo por cualquier motivo. Asimismo, el Cliente acepta que, en relación con cualquier uso de los Productos de Trabajo por parte del Cliente, los Productos de Trabajo no se copiarán ni instalarán en servidores adicionales a menos que el Cliente haya adquirido una licencia para ello. Se aplicarán a los Productos de Trabajo todas las restricciones de uso del Producto Principal de Hyland, incluidas, entre otras, las restricciones a la exportación y las disposiciones relativas al Usuario final del Gobierno de EE. UU. en virtud de los términos del acuerdo de licencia en virtud del cual el Cliente recibió el derecho a utilizar el Software con el que se utilizarán los Productos de Trabajo. Si la licencia del Producto Principal de Hyland con la que Hyland entregó dicho Producto de Trabajo para su uso por parte del Cliente finaliza, el derecho del Cliente a utilizar el Producto de Trabajo aplicable también finalizará. Todos los derechos y obligaciones posteriores a la finalización con respecto al Producto Principal de Hyland aplicable también se aplicarán al Producto de Trabajo.
9.3 Modificación de Productos de Trabajo.
(a) Forma de los Productos de Trabajo entregados. La forma en la que Hyland entregue los Productos de Trabajo será determinada por Hyland en función del propósito y la funcionalidad del Producto de Trabajo.
(b) Productos de Trabajo de Configuración. Si Hyland entrega un Producto de Trabajo: (a) en forma de (i) código fuente compilado por las herramientas del Software en lenguaje de máquina; o (ii) un script; o (b) creado utilizando las herramientas de configuración del Software (un "Producto de Trabajo de Configuración"), Hyland concede al Cliente el derecho limitado a modificar el Producto de Trabajo de Configuración, siempre que dicho Producto de Trabajo de Configuración modificado se utilice únicamente de conformidad con los términos de la licencia limitada para dicho Producto de Trabajo concedida en virtud de la presente Sección.
(c) Productos de Trabajo Independientes. Si Hyland entrega un Producto de Trabajo que no es un Producto de Trabajo de Configuración (un "Producto de Trabajo Independiente"), el Cliente no podrá alterar ni modificar dicho Producto de Trabajo Independiente, salvo que se indique lo contrario en la última frase de este párrafo. Si Hyland entrega un Producto de Trabajo Independiente y el Cliente desea obtener el derecho a modificarlo, las Partes podrán acordar mutuamente que Hyland entregue al Cliente una copia del formato del Producto de Trabajo Independiente que sea necesaria para que el Cliente pueda completar sus modificaciones, siempre y cuando el Cliente realice a Hyland el previo pago de cualquier tarifas adicionales por Servicios Profesionales que Hyland pueda cobrar por preparar y entregar dicho formato. En tal caso, Hyland concede al Cliente el derecho a modificar y, si fuera necesario, compilar el formato entregado del Producto de Trabajo Independiente, siempre que dicho Producto de Trabajo Independiente modificado se utilice únicamente de conformidad con los términos de la licencia limitada de dicho Producto de Trabajo concedida en virtud de la presente Sección.
9.4 Indemnización por Infracción de los Productos de Trabajo. Hyland acepta indemnizar al Cliente por cualquier responsabilidad y gasto, incluidos los honorarios razonables de abogados, derivados o relacionados con cualquier reclamación, acción o procedimiento de terceros iniciado contra el Cliente basado en cualquier infracción o apropiación indebida por parte de los Productos de Trabajo de cualquier patente, derecho de autor registrado o marca comercial registrada de un tercero, siempre que Hyland: (i) sea notificado rápidamente después de que el Cliente reciba la notificación de dicha reclamación; (ii) sea el único encargado de la defensa y de las negociaciones para llegar a un acuerdo con respecto a dicha reclamación, siempre que Hyland no llegue a un acuerdo con respecto a dicha reclamación sin el consentimiento previo por escrito del Cliente si dicho acuerdo contiene una estipulación o admisión o reconocimiento de cualquier responsabilidad o acto ilícito por parte del Cliente o requiere de otro modo un pago por parte del Cliente; (iii) reciba la cooperación razonable del Cliente en la defensa o resolución de dicha reclamación; y (iv) tenga derecho, en caso de que se produzca o sea probable (en opinión de Hyland) que se produzca una infracción o apropiación indebida, a obtener para el Cliente el derecho a seguir utilizando los Productos de Trabajo o a sustituir las partes pertinentes de los Productos de Trabajo por otras partes equivalentes que no supongan una infracción.
(a) Retirada y reembolso. Si Hyland no puede llevar a cabo ninguna de las opciones establecidas en la Sección 9.4(iv), Hyland retirará la parte infractora de los Productos de Trabajo y reembolsará al Cliente las tarifas de servicios abonadas, en su caso, por el Cliente en relación únicamente con la creación e implementación de los Productos de Trabajo infractores en virtud del presente Contrato.
(b) Exclusiones. Sin perjuicio de cualquier disposición en contrario, Hyland no tendrá obligación alguna ante el Cliente de defender o satisfacer ninguna reclamación presentada contra el Cliente y descrita de otro modo en la Sección 9.4 que surja de: (i) el Cliente utilizó los Productos de Trabajo por parte del Cliente de forma expresamente no permitida por el presente Contrato; (ii) la combinación de los Productos de Trabajo con cualquier producto no suministrado por Hyland al Cliente; (iii) la modificación o adición de los Productos de Trabajo por parte de otro que no sea Hyland o cualquiera de sus distribuidores autorizados contratados específicamente por Hyland para proporcionar dicha modificación o adición; o (iv) los métodos, procesos, información o datos empresariales del Cliente.
(c) ESTA SECCIÓN 9.4 ESTABLECE LA RESPONSABILIDAD TOTAL DE HYLAND Y EL RECURSO ÚNICO Y EXCLUSIVO DEL CLIENTE CON RESPECTO A CUALQUIER SUPUESTA INFRACCIÓN O APROPIACIÓN INDEBIDA DE PROPIEDAD INTELECTUAL O PROPIEDAD INTELECTUAL POR LOS PRODUCTOS DE TRABAJO.
10. GARANTÍA LIMITADA PARA SERVICIOS Y PRODUCTOS DE TRABAJO.
10.1 Garantía Limitada para los Servicios Profesionales. Durante un periodo de sesenta (60) días a partir de la fecha de finalización de los Servicios Profesionales, Hyland garantiza al Cliente que dichos Servicios Profesionales se han prestado de forma correcta y profesional y sustancialmente de acuerdo con los estándares del sector. Esta garantía excluye específicamente los problemas de rendimiento causados por datos o procedimientos incorrectos utilizados o proporcionados por el Cliente o un tercero, o por fallos del Cliente para realizar y cumplir sus obligaciones en virtud del presente Contrato.
10.2 Garantía limitada de los Productos de Trabajo. Durante un periodo de sesenta (60) días a partir de la fecha en que Hyand haya entregado al Cliente un Producto de Trabajo terminado, Hyland garantiza al Cliente que dicho Producto de Trabajo, cuando se instale y utilice correctamente, funcionará en todos los aspectos materiales tal y como se describe en las Especificaciones. Los términos de esta garantía no se aplicarán a, y Hyland no tendrá ninguna responsabilidad por cualquier no conformidad relacionada con, cualquier Producto de Trabajo que haya sido (a) modificado o añadido por el Cliente o un tercero, (b) utilizado en combinación con equipos o software distintos de los que se ajustan a las Especificaciones, o (c) mal utilizado o abusado.
10.3 Recurso. La única obligación de Hyland, y el único y exclusivo recurso del Cliente en caso de no conformidad con las garantías limitadas expresas de las Secciones 10.1 y 10.2 serán los siguientes: siempre que, dentro del periodo aplicable de sesenta (60) días, el Cliente notifique por escrito a Hyland la no conformidad, Hyland realizará todos los esfuerzos razonables para volver a prestar los servicios no conformes en un intento de corregir la(s) no conformidad(es) o, en el caso de un Producto de Trabajo, reparar o sustituir el Producto de Trabajo no conforme, lo que puede incluir la entrega de una solución comercialmente razonable para subsanar la no conformidad. Si Hyland no puede corregir dicha(s) disconformidad(es) tras un periodo de tiempo razonable o determina que la reparación o sustitución del Producto de Trabajo no es comercialmente razonable, el único y exclusivo recurso del Cliente será rescindir el presente Contrato, en cuyo caso Hyland reembolsará al Cliente la parte de las tarifas de servicios en virtud del presente Contrato relacionados directamente con dichos Servicios Profesionales disconformes o con la creación e implementación del Producto de Trabajo disconforme, en cualquier caso abonados antes de dicha rescisión.
10.4 Exclusión de garantías. SALVO EN LOS CASOS INDICADOS ANTERIORMENTE, HYLAND Y SUS PROVEEDORES NO OFRECEN NINGUNA GARANTÍA NI DECLARACIÓN EN RELACIÓN CON LOS PRODUCTOS DE TRABAJO, LAS INNOVACIONES, LA INFORMACIÓN O LOS SERVICIOS PROFESIONALES PRESTADOS EN VIRTUD DEL PRESENTE CONTRATO. HYLAND Y SUS PROVEEDORES RECHAZAN Y EXCLUYEN CUALQUIER OTRA GARANTÍA EXPRESA, IMPLÍCITA Y LEGAL, INCLUIDAS, ENTRE OTRAS, LAS GARANTÍAS CONTRA INFRACCIONES, LAS GARANTÍAS IMPLÍCITAS DE COMERCIABILIDAD E IDONEIDAD PARA UN FIN DETERMINADO, Y LAS GARANTÍAS QUE PUEDAN SURGIR O CONSIDERARSE SURGIDAS DE CUALQUIER CURSO DE EJECUCIÓN, CURSO DE NEGOCIACIÓN O USO COMERCIAL. HYLAND Y SUS PROVEEDORES NO GARANTIZAN QUE LOS SERVICIOS PROFESIONALES O LOS PRODUCTOS DE TRABAJO PROPORCIONADOS SATISFAGAN LOS REQUISITOS DEL CLIENTE O ESTÉN EXENTOS DE DEFECTOS O ERRORES, NI QUE EL FUNCIONAMIENTO DEL SOFTWARE O DE LOS PRODUCTOS DE TRABAJO PROPORCIONADOS EN VIRTUD DEL PRESENTE CONTRATO SEA ININTERRUMPIDO. SALVO QUE SE INDIQUE EXPRESAMENTE EN EL PRESENTE CONTRATO, HYLAND NO ASUME RESPONSABILIDAD ALGUNA CON RESPECTO AL HARDWARE, FIRMWARE, SOFTWARE O SERVICIOS DE TERCEROS.
11. RESCISIÓN.
11.1 En General. Salvo que se indique lo contrario en un Documento de Incorporación , o las partes acuerden lo contrario por escrito, el Cliente o Hyland podrán rescindir el presente Contrato, por cualquier motivo, previa notificación por escrito a la otra Parte con una antelación mínima de treinta (30) días.
11.2 Por Cualquiera de las Partes. Cualquiera de las Partes podrá rescindir el presente Contrato en su totalidad, con efecto inmediato previa notificación por escrito a la otra Parte, si la otra Parte ha incumplido una disposición sustancial del presente Contrato y no ha subsanado el incumplimiento en un plazo de treinta (30) días a partir de la recepción de la notificación por escrito del incumplimiento enviada por la Parte que no ha incumplido; no obstante, Hyland no estará obligado a dar al Cliente ninguna oportunidad de subsanar ningún incumplimiento en el caso de cualquier Acto Prohibido, todos los cuales se consideran, a todos los efectos, disposiciones sustanciales del presente Contrato.
11.3 Rescisión del Presente Contrato. En caso de rescisión del presente Contrato, el Cliente acepta compensar a Hyland por todos los Servicios Profesionales ya prestados antes de la fecha de rescisión, incluida ésta, salvo en la medida que Hyland haya incumplido sus obligaciones de prestar dichos Servicios Profesionales y dicho incumplimiento sea la causa de la rescisión.
11.4 Efectos de la Rescisión. En caso de rescisión del presente Contrato en su totalidad (a menos que sea alegada por Hyland debido al incumplimiento del Cliente), la licencia del Cliente para utilizar los Productos de Trabajo previstos en el presente Contrato seguirá vigente de acuerdo con los términos previstos.
12. LIMITACIONES DE RESPONSABILIDAD.
12.1 NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, OMISIÓN O CUALQUIER OTRA TEORÍA LEGAL, DE NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENTE, NI DE NINGUNA PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUIDOS LAS TARIFAS DEBIDOS EN VIRTUD DEL PRESENTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REPARACIÓN DE LA COBERTURA, O DAÑOS POR INTERRUPCIÓN DEL NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE DICHOS DAÑOS, PÉRDIDAS, GASTOS O COSTES.
12.2 LA RESPONSABILIDAD TOTAL Y ACUMULATIVA DE HYLAND (INCLUIDOS SUS FILIALES Y PROVEEDORES) DERIVADA DEL PRESENTE CONTRATO, YA SEA CONTRACTUAL O EXTRACONTRACTUAL, (INCLUIDA LA NEGLIGENCIA, O CUALQUIER OTRA TEORÍA LEGAL) NO SUPERARÁ EN NINGÚN CASO LOS IMPORTES TOTALES PAGADOS REALMENTE A HYLAND POR EL CLIENTE (MENOS CUALQUIER REEMBOLSO O CRÉDITO) POR LA PRESTACIÓN DE LOS SERVICIOS QUE DEN LUGAR A LA RECLAMACIÓN DURANTE EL PERÍODO DE DOCE (12) MESES INMEDIATAMENTE ANTERIOR AL PRIMER EVENTO QUE DÉ LUGAR A DICHA RECLAMACIÓN. CON RESPECTO A CUALQUIER PRODUCTO O SERVICIO PROFESIONAL PROPORCIONADO AL CLIENTE DE FORMA GRATUITA (COMO SOFTWARE O SERVICIOS DE EVALUACIÓN), NI HYLAND NI NINGUNA DE SUS FILIALES O PROVEEDORES SERÁN RESPONSABLES DE LOS DAÑOS.
13. EXPORTACIÓN. El Software, los Productos de Trabajo o la Documentación suministrados en virtud del presente Contrato están sujetos a las leyes de control de exportaciones de los Estados Unidos y otras jurisdicciones. El Cliente se compromete a cumplir plenamente todas las leyes pertinentes de control de las exportaciones, incluidos los reglamentos del Departamento de Comercio de los Estados Unidos y todas las leyes de control de las exportaciones de los Estados Unidos, incluidos, entre otros, los Regulaciones de Administración de Exportaciones (EAR) del Departamento de Comercio de los Estados Unidos, para garantizar que el Software, los Productos de Trabajo o la Documentación no se exporten infringiendo la legislación de los Estados Unidos de América o las leyes y regulaciones de otras jurisdicciones. El Cliente acepta que no exportará ni reexportará el Software, los Productos de Trabajo o la Documentación a ninguna organización o nacional de los territorios con embargo de los Estados Unidos de América de Cuba, Irán, Corea del Norte, Sudán, Siria o cualquier otro territorio o nación con respecto a los cuales el Departamento de Comercio de los Estados Unidos de América, el Departamento de Estado de los Estados Unidos de América, el Departamento del Tesoro de los Estados Unidos de América, la U.E. y/o cualquier otro Estado nacional mantengan algún programa de sanciones por actividades comerciales. El Cliente no utilizará el Software, los Productos de Trabajo ni la Documentación para ningún uso prohibido en virtud de las leyes y normativas aplicables de los Estados Unidos de América y otras jurisdicciones, incluyendo, pero sin limitarse a, cualquier aplicación relacionada con, o con fines asociados a, la guerra nuclear, química o biológica, la tecnología de misiles (incluidos los vehículos aéreos no tripulados), la aplicación militar o cualquier otro uso prohibido o restringido en virtud de la Normativa de Administración de Exportaciones de los Estados Unidos de América (EAR) o cualquier otra ley, norma o regulación pertinente de los Estados Unidos de América y otras jurisdicciones.
14. INFORMACIÓN CONFIDENCIAL.
14.1 La "Información Confidencial" será aquella información que esté marcada como "Privada" o "Confidencial", que sea conocida por el destinatario como confidencial o que su naturaleza sea habitualmente sea confidencial entre partes comerciales, salvo lo dispuesto en la siguiente frase. La Información Confidencial no incluirá información que (a) sea o pase a ser generalmente conocida por el público sin incumplimiento del presente Contrato por parte del destinatario, o (b) el destinatario demuestre que ha estado en su posesión antes de su divulgación por la parte divulgadora, o (c) el destinatario reciba de un tercero que no esté sujeto, a conocimiento del destinatario, a restricciones, obligaciones o deberes de no divulgación a la parte divulgadora, o (d) el destinatario demuestre que ha sido desarrollada de forma independiente por el destinatario sin referencia o uso de la información de la parte divulgadora.
14.2 Cada una de las partes acuerda que, con respecto a la Información Confidencial de la otra Parte, o de sus filiales, dicha Parte, como receptora, utilizará el mismo grado de cuidado para proteger su propia Información Confidencial, pero en ningún caso menos que el cuidado razonable, y no utilizará ni revelará a terceros dicha Información Confidencial, salvo en la medida en que lo exija la ley o una orden judicial, o según lo dispuesto en el presente Contrato. El Cliente se compromete a tomar las medidas razonables para proteger todos los Productos de Trabajo e Innovaciones, así como cualquier Documentación relacionada, entregados por el Hyland al Cliente en virtud del Contrato frente a copias o usos no autorizados. Cada una de las Partes será responsable de cualquier incumplimiento de esta Sección 14 cometido por cualquiera de sus empleados, agentes, consultores, contratistas o representantes.
14.3 Las Partes reconocen que un recurso legal por incumplimiento de las disposiciones del presente Contrato relativas a la Información Confidencial y a los derechos de propiedad intelectual no será adecuado para la protección de la parte perjudicada y, en consecuencia, la parte perjudicada tendrá derecho a solicitar, además de cualquier otra reparación y recurso a su disposición, un cumplimiento específico o medidas cautelares para hacer cumplir las disposiciones del presente Contrato.
15. NO CAPTACIÓN; NO CONTRATACIÓN. Véase el Anexo A adjunto.
16. TÉRMINOS Y CONDICIONES ADICIONALES. Si Hyland es una de las compañías de Hyland que se indican a continuación, se aplicarán los términos y condiciones adicionales o alternativos establecidos en el Anexo de términos adicionales aplicable que se indica a continuación:
| Compañía de Hyland | Anexo de Términos Adicionales |
| Hyland Colombia S.A.S. | Anexo C |
| Hyland Mexico S. de R.L. de C.V. | Anexo D |
| Hyland Software, Inc., si el Cliente se localiza en Perú | Anexo E |
17. CONDICIONES GENERALES.
17.1. Fuerza Mayor. Ningún incumplimiento, retraso o falta de cumplimiento de cualquier obligación de una Parte (excepto el pago de dinero) constituirá un incumplimiento o violación en la medida en que dicho incumplimiento, retraso o falta de cumplimiento surja de una causa, existente o futura, fuera del control (incluyendo, pero no limitado a: acción o inacción de la autoridad gubernamental, civil o militar; incendio; huelga, cierre patronal u otro conflicto laboral; inundación; guerra; disturbios; robo; terremoto; desastre natural o caso fortuito; emergencias nacionales; indisponibilidad de materiales o servicios públicos; sabotaje; virus; o acto, negligencia o incumplimiento de la otra Parte) y sin negligencia o dolo de la Parte a la que se imputa el incumplimiento, retraso o incumplimiento. Cualquiera de las Partes que desee invocar alguna de las causas anteriores como excusa para el incumplimiento, la demora o el retraso en el cumplimiento deberá, cuando surja la causa, notificar a la otra Parte sin demora y por escrito los hechos que constituyen dicha causa; y, cuando la causa deje de existir, notificar este hecho sin demora a la otra Parte. La presente Sección 17.1 no limitará en modo alguno el derecho de cualquiera de las Partes a reclamar a terceros por los daños sufridos debido a dichas causas. Si cualquier fecha de cumplimiento en virtud del presente Contrato se pospone o prorroga de conformidad con la presente Sección 17.1 durante más de noventa (90) días naturales, la otra Parte, mediante notificación por escrito entregada durante el aplazamiento o la prórroga, y al menos treinta (30) días antes de la fecha efectiva de rescisión, podrá rescindir el presente Contrato.
17.2. Ley aplicable; Jurisdicción. Véase el Anexo B adjunto.
17.3 Efecto Vinculante; Cesiones. El presente Contrato será vinculante y adaptará en beneficio de las Partes y de sus respectivos sucesores y cesionarios autorizados. Ninguna de las Partes podrá ceder, transferir o sublicenciar la totalidad o parte del presente Contrato o sus derechos u obligaciones en virtud del mismo, en su totalidad o en parte, a cualquier otra persona o entidad sin el consentimiento previo por escrito de la otra Parte; siempre que dicho consentimiento no sea denegado injustificadamente en el caso de cualquier cesión o transferencia por una Parte del presente Contrato en su totalidad a la entidad superviviente de una fusión o consolidación o a cualquier comprador de sustancialmente todos los activos de dicha Parte que asuma por escrito todas las obligaciones y deberes de dicha Parte en virtud del presente Contrato. Cualquier cesión realizada sin cumplir las disposiciones de esta Sección será nula y sin efecto. No obstante cualquier disposición en contrario, Hyland puede ceder este Contrato a cualquier filial de Hyland sin el consentimiento de la otra parte mediante notificación por escrito a la otra parte. El Cliente reconoce que Hyland y/o cualquiera de sus filiales puede cumplir cualquiera de las obligaciones de Hyland contempladas en el presente Contrato.
17.4 Subcontratación. Hyland podrá subcontratar la totalidad o parte de los Servicios Profesionales, siempre que Hyland siga siendo responsable ante el Cliente de la prestación de los servicios subcontratados.
17.5 Contratista Independiente. Las Partes reconocen que Hyland es un contratista independiente y que será responsable de sus obligaciones como empleador de las personas que presten los Servicios Profesionales.
17.6 Terceros. Nada de lo aquí expresado o implícito pretende o deberá interpretarse para conferir o dar a cualquier persona o entidad, distinta de las Partes, ningún derecho o recurso en virtud del presente Contrato; sin embargo, los terceros proveedores de productos de software incluidos con el Software son terceros beneficiarios del presente Contrato en la medida en que se aplique a sus respectivos productos de software.
17.7 Integración. El presente Contrato, incluido cualquier exhibit, anexo o acuerdo adjunto al presente Contrato o al que se haga referencia en el mismo, establece la totalidad del acuerdo y entendimiento de las Partes en relación con el objeto de este y sustituye todos los acuerdos, negociaciones y discusiones anteriores entre ellas sobre el mismo objeto. Cualquier otro término que varíe o se añada a los términos de este Contrato, ya sea contenido en cualquier orden de compra u otra comunicación electrónica, escrita u oral hecha de una Parte a la otra, es rechazado y será nulo y sin fuerza o efecto a menos que se incluya en una enmienda escrita firmada mutuamente por las Partes. En la medida en que exista un conflicto entre estas Condiciones Generales y el Documento de Incorporación, prevalecerán los términos de estas Condiciones Generales.
17.8 Divisibilidad. Si alguna disposición del presente Contrato es considerada inaplicable o inválida por una autoridad competente, dicha inaplicabilidad o invalidez no hará que el presente Contrato sea inaplicable o inválido en su totalidad y, en tal caso, dicha disposición se modificará e interpretará de forma que cumpla de la mejor manera posible los objetivos de dicha disposición inaplicable o inválida dentro de los límites de la legislación aplicable o de las decisiones judiciales aplicables.
17.9 Políticas Corporativas. Hyland reconoce que el Cliente mantiene políticas corporativas que se aplican a las personas que prestarán servicios utilizando las instalaciones o el sistema del Cliente (colectivamente, las “Políticas Corporativas”). Al prestar Servicios Profesionales en virtud de este Contrato, Hyland realizará esfuerzos razonables para cumplir con las Políticas Corporativas en la medida en que dichas Políticas Corporativas sean aplicables a la prestación de dichos Servicios Profesionales, no entren en conflicto con el Contrato ni con ningún otro acuerdo relacionado vigente entre Hyland y el Cliente y se hayan facilitado a Hyland con una antelación razonable a la contratación de los Servicios Profesionales. Sin perjuicio de cualquier disposición en contrario en dichas Políticas Corporativas, si un recurso de Hyland incumple las Políticas Corporativas y dicho incumplimiento no constituye de otro modo un incumplimiento de este Contrato, el Cliente reconoce y acepta que Hyland no habrá incumplido el contrato ni será responsable de otro modo por daños y perjuicios, y como único recurso del Cliente, el Cliente podrá retirar inmediatamente de sus instalaciones el/los recurso(s) individual(es) responsable(s) del incumplimiento y exigir que dicho(s) recurso(s) individual(es) no realice(n) más Servicios Profesionales para el Cliente.
17.10 Distribuidor Autorizado. En la medida en que el Cliente sea un distribuidor autorizado de Hyland, el Documento de Incorporación haya sido suscrito por el Cliente en beneficio de un usuario final (un "Usuario Final"), y dicho Usuario Final no haya suscrito previamente un contrato independiente con Hyland que rija los Servicios Profesionales prestados en virtud del Documento de Incorporación, se aplicarán los términos de esta Sección.
El Cliente y Hyland reconocen y acuerdan que Hyland presta Servicios profesionales al Cliente en beneficio del Usuario final; por lo tanto, el Cliente (a) declara y garantiza que ha suscrito un contrato vinculante con el Usuario final en relación con el proyecto, en virtud del cual se permite al Cliente contratar a Hyland como subcontratista para prestar los Servicios profesionales contemplados en el presente Contrato; (b) acuerda que la licencia de los Productos de trabajo de la Sección 9. 2 será sublicenciada por el Cliente al Usuario Final, sujeta a las restricciones establecidas en la misma y que, aparte del derecho a sublicenciar los Productos de Trabajo, la licencia de los Productos de Trabajo no se extiende al Cliente; y (c) acepta que hará que el Usuario Final cumpla las disposiciones de este Contrato que son vinculantes para el Cliente como si el Usuario Final fuera una Parte, incluyendo facilitar la cooperación del Usuario Final según lo solicitado por Hyland para proporcionar los Servicios Profesionales y hacer que el Usuario Final cumpla las restricciones y limitaciones contenidas en el presente documento. Además, el Cliente acepta que será responsable del cumplimiento de este Contrato por parte del Usuario final y acepta expresamente indemnizar a Hyland por todas las reclamaciones, responsabilidades, pérdidas, daños y costes, incluidos los honorarios razonables de abogados y las costas judiciales, sufridos o incurridos por Hyland derivados de cualquier incumplimiento por parte del Usuario final de cualquiera de las disposiciones de este Contrato.
17. 11 El Idioma que Controla. Hyland puede poner a disposición otras versiones de estas Condiciones Generales en otros idiomas en esta ubicación en línea. Esta versión en español de estas Condiciones Generales prevalece sobre cualquier versión de estas Condiciones Generales disponible en esta ubicación en línea en otro idioma si el Documento de Incorporación está en español. Si el Documento de Incorporación está redactado en un idioma distinto del español ("Otro Idioma"), pero estas Condiciones Generales no están disponibles en esta ubicación en línea en el Otro idioma, esta versión en español prevalece sobre cualquier otra versión de las Condiciones Generales que pueda estar disponible en esta ubicación en línea en otro idioma.
Anexo A
No Captación; No Contratación
La Sección 15 del Contrato (No Captación; No Contratación) serán los términos establecidos en este Anexo A, basados en la compañía Hyland aplicable que se enumera a continuación:
“Personas Restringidas” significa cualquier persona (i) con la que la parte contratante haya tenido contacto o que haya llegado a ser conocida por la parte contratante en relación con el Contrato; y (ii) que sea o haya sido empleado de la otra parte, en cada caso en cualquier momento durante el empleo de dicha persona por la otra parte o en el plazo de un (1) año después de que dicha persona haya dejado de ser empleado de la otra parte.
Durante la vigencia de este Contrato y durante un (1) año tras la expiración o rescisión del Contrato, ni el Cliente ni Hyland podrá (salvo en la medida en que cualquiera de las partes reciba el consentimiento previo por escrito de la otra parte):
(a) solicitar empleo o contratación como contratista independiente para la parte solicitante o para cualquier otro tercero a una Persona Restringida, o animar o ayudar de cualquier otro modo a dicha Persona Restringida a abandonar el empleo de la otra parte por cualquier motivo, en cada caso en cualquier momento durante el empleo de dicha Persona Restringida por la otra parte o en el plazo de un año (1) después de que dicha persona haya dejado de ser empleada de la otra parte; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona que sea un Individuo Restringido.
(c) Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con la Sección 15(a). Las Partes acuerdan que esta disposición subsiste tras la rescisión del Contrato.
(d) La Sección 15(d) del Contrato serán los términos establecidos a continuación, basados en la compañía de Hyland aplicable que se enumera a continuación:
1. Hyland Software, Inc. Si Hyland es Hyland Software, Inc. (excepto en la medida en que el Cliente esté ubicado en Perú), Hyland Australia Pty Ltd., Hyland France S.A.S., Hyland Italy SRL, Hyland Software Malta Ltd., Hyland Netherlands B.V., Hyland New Zealand Limited, o Hyland Poland Spolka Z.O.O., se aplicarán los siguientes términos como Sección 15(d):
Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de los abogados.
2. Hyland Software Brasil Ltda. Si Hyland es Hyland Software Brasil Ltda, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual a Ciento Noventa Mil Reales (R$190.000,00), y todos los costos asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo pero no limitado a honorarios razonables de abogados.
3. Hyland Software Germany GMBH. Si Hyland es Hyland Software Germany GMBH, se aplicarán los siguientes términos como Sección 15(d): Cada violación culpable de esta disposición por una parte da derecho a la otra a un pago por un importe igual a Cincuenta Mil Euros (50.000,00 €), y todos los costes asociados con el cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
Además, sin perjuicio de cualquier disposición en contrario en el presente documento, la subsección 15(c) anterior será modificada y sustituida en su totalidad de la siguiente manera: Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con las Secciones 15(a) y 15(b). Las Partes acuerdan que esta disposición subsistirá a la terminación del Contrato.
4. Hyland Software Mexico S. de R.L. de C.V. Si Hyland es Hyland Software Mexico S. de R.L. de C.V., los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del Individuo Restringido inmediatamente antes de dejar el servicio de la otra parte y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluidos, entre otros, los honorarios razonables de abogados.
5. Hyland Switzerland SARL. Si Hyland es Hyland Switzerland SARL, los siguientes términos se aplicarán como Sección 15(d): Cada violación de esta disposición por una de las partes da derecho a la otra a un pago por un importe igual a Cincuenta Mil Francos Suizos (CHF50.000,00), y todos los costes asociados al cobro de dicho pago, incluyendo pero no limitado a los honorarios de abogados.
6. Hyland UK Operations Limited. Si Hyland es Hyland UK Operations Limited los siguientes términos se aplicarán como Sección 15(d):
7. Hyland Software Canada ULC. Si Hyland es Hyland Software Canada ULC, los siguientes términos se aplicarán como Sección 15 del Contrato (No Captación; No Contratación):
Durante la vigencia del presente Contrato, el Cliente no podrá:
(a) solicitar empleo o ser contratado como contratista independiente para sí mismo o para un tercero a una persona que sea empleado de Hyland, ni animar o ayudar de otro modo a dicha persona a abandonar el empleo de Hyland por cualquier motivo; o
(b) emplear o contratar, directa o indirectamente, como empleado o contratista independiente a una persona: (i) con la que el Cliente haya tenido contacto o que haya llegado a ser conocida por el Cliente en relación con este Contrato; y (ii) que sea empleado de Hyland;
(c) Cada violación de esta disposición por una de las partes da derecho a la otra parte a una indemnización por daños y perjuicios (no una sanción) por un importe igual al 100% de los ingresos anuales del empleado inmediatamente antes de dejar el servicio de la otra parte, y, en cualquier caso, todos los costes asociados con el cobro de dicha indemnización por daños y perjuicios, incluyendo, pero no limitado a, los honorarios razonables de abogados. Un anuncio general o una solicitud de empleo iniciada exclusivamente por un empleado de la otra parte no se considerará una captación de conformidad con esta Sección 15.
Para cualquier compañía de Hyland a la que no se haga referencia en este Anexo A, no se aplicará la Sección 15 (No Captación; No Contratación).
Anexo B
Ley aplicable; Jurisdicción
La Sección 17.2 del Contrato (Ley aplicable; Jurisdicción) será la establecida en este Anexo B, basada en la compañía Hyland aplicable que se indica a continuación:
siempre y cuando, si Hyland está prestando servicios dentro de los siguientes países, los términos identificados a continuación se aplicarán en lugar de los términos anteriores:
1. Perú. El presente Contrato y cualquier reclamación, acción, pleito, procedimiento o controversia que se derive del mismo se regirán en todos los aspectos por, y se interpretarán de conformidad con, las Leyes sustantivas de la República del Perú, a excepción de los Conflictos de Leyes (y no por la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980, en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. En caso de cualquier controversia en relación con el presente Contrato, incluyendo su interpretación, validez y existencia, dicha controversia se resolverá mediante arbitraje de derecho, bajo las normas del Tribunal Arbitral de la Cámara de Comercio de Lima. El panel arbitral estará conformado por tres árbitros designados de conformidad con dicho reglamento. Cada Parte podrá designar un árbitro y los dos árbitros designados designarán un tercer árbitro que actuará como presidente del panel.
2. Singapur. El presente Contrato y cualquier reclamación, acción, litigio, procedimiento o controversia que se derive del mismo se regirá e interpretará en todos sus aspectos de conformidad con el derecho sustantivo de la República de Singapur (y no con la Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías de 1980 ni con la Ley Uniforme de Transacciones Informáticas, ambas en su versión modificada), sin que se apliquen las disposiciones de conflictos de leyes de dichas leyes. Los tribunales de Singapur serán los únicos competentes para conocer de cualquier acción, litigio o procedimiento derivado del presente Contrato.
Anexo C
Anexo de Términos Adicionales para Hyland Colombia S.A.S.
Si Hyland es Hyland Colombia S.A.S., se aplicará el presente Anexo C:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo D
Anexo de Términos Adicionales para Hyland Mexico S. de R.L. de C.V.
Si Hyland es Hyland Mexico S. de R.L. de C.V., se aplicará el presente Anexo D:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en el Artículo 1916 del Código Civil Federal Mexicano.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
Anexo E
Anexo de Términos Adicionales para Hyland Software, Inc. – Perú
Si Hyland es Hyland Software, Inc., pero Hyland está prestando servicios dentro del país de Perú, se aplicará este Anexo E:
1. La Sección 12.1 del Contrato será reemplazada en su totalidad de la siguiente manera:
NINGUNA DE LAS PARTES NI NINGUNA DE SUS FILIALES (Y EN EL CASO DE HYLAND, SUS PROVEEDORES) SERÁ RESPONSABLE, YA SEA POR CONTRATO, AGRAVIO (INCLUYENDO NEGLIGENCIA), O CUALQUIER OTRA TEORÍA LEGAL O EQUITATIVA, POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO, CONSECUENTE O MORAL, O CUALQUIER PÉRDIDA DE INGRESOS, BUEN NOMBRE, AHORROS O BENEFICIOS (EXCLUYENDO LAS TARIFAS DEBIDOS EN VIRTUD DE ESTE CONTRATO), PÉRDIDA O CORRUPCIÓN DE DATOS O PROGRAMAS, COSTES DE SUSTITUCIÓN O REMEDIO DE COBERTURA, O DAÑOS POR INTERRUPCIÓN DE NEGOCIO, INCLUSO SI SE AVISA DE LA POSIBILIDAD DE TALES DAÑOS, PÉRDIDAS, GASTOS O COSTES.
Para efectos de esta Sección 12.1, "Daño Moral" significa el descrito en los artículos 1984 y 1322 del Código Civil.
2. El apartado 17.7 del Contrato se sustituye íntegramente por el texto siguiente: El presente Contrato constituye el acuerdo íntegro entre las partes con respecto al objeto del mismo, incluidos los anexos, formularios de pedido o documentos adjuntos a los que pueda hacerse referencia. Ninguna disposición de este Contrato se considerará renunciada, enmendada o modificada por cualquiera de las partes, a menos que dicha renuncia, enmienda o modificación se haga por escrito y sea firmada por representantes autorizados de todas las partes. El presente Contrato sustituye a todos los acuerdos anteriores entre cualquiera de las partes en relación con el objeto del mismo. El presente Contrato no se complementará ni modificará por ningún Curso de Ejecución, Curso de Negociación o Uso Comercial. Tal y como se utiliza en el presente documento, "Curso de Ejecución" significa una secuencia de conducta entre las partes en virtud del presente Contrato que existe si (i) implica repetidas ocasiones de cumplimiento por una parte y (2) la otra parte, con conocimiento de la naturaleza del cumplimiento y teniendo la oportunidad de objetar al mismo, acepta el cumplimiento o lo consiente sin objeción; "Curso de Negociación" significa una secuencia de conductas entre las partes que se refiere a transacciones anteriores entre ellas y que puede considerarse que establece una base común de entendimiento para interpretar sus expresiones y otras conductas; y "Uso comercial" significa una práctica comercial que es tan usual o habitual que se justifica la expectativa de que será seguida en una transacción comercial concreta.
(The most current version of this page shall be such in effect as of 12:00am EST (Eastern Standard Time) of the date stamped on such online version.)
Confidential - Ó 2023 Hyland Software, Inc.
PaaS Security Attachment
Effective August 22nd 2023
DownloadTable of Contents
Platform-as-a-Service Schedule
Effective June 29th 2024
DownloadTable of Contents
PLATFORM-AS-A-SERVICE SCHEDULE (PAAS)
This Platform-as-a-Service Schedule (“PaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this PaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this PaaS Schedule, and any other agreement within which the Incorporating Document is incorporated. The parties acknowledge and agree that this PaaS Schedule applies to the Hyland Cloud Service (as defined herein) and Software provided on a platform-as-a-service basis; the Software-as-a-Service Schedule does not apply to the Hyland Cloud Service or Software as defined herein.
DEFINED TERMS.
All capitalized terms used in this PaaS Schedule shall have the meaning ascribed them in this PaaS Schedule or, if not defined in this PaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this PaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this PaaS Schedule, this PaaS Schedule shall be interpreted to include all definitions, as the context requires.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hyland Cloud Services.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Development Sandbox” means a set of environments ordered pursuant to an Order Form during the term for the applicable Hyland Cloud Service and used for testing with non-production data.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service and Software, or (b) if no such “Help Files” are included in the Hyland Cloud Service or Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service or Software.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Service” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, and Hosted 3rd Party Software made available on a platform-as-a-service basis, whether owned by Hyland or a third party, and as set forth on the applicable Order Form. For clarity, the Hyland Cloud Service does not include the Nuxeo Platform or Alfresco Community Version.
“Hyland Cloud Service Support” means the services described in this PaaS Schedule.
“Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. An Instance may also be referred to as a “Nuxeo Server” and may be illustrated as a “Nuxeo Server”, “Nuxeo Node” or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications solely as it relates to Nuxeo-branded Hyland Cloud Services as set forth on an Order Form.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“PaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service and Software. The initial PaaS Fees are set forth in either the Order Form.
“PaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#paas-security-attachment. The PaaS Security Attachment describes Hyland's current security processes and procedures for the products and services purchased under this PaaS Schedule. These processes and procedures may be updated from time to time, but will not be materially reduced.
“PaaS Specification” means the additional terms and descriptions of the applicable Hyland Cloud Services and associated delivery terms, which may include without limitation functionality, support, performance standards, information security and similar information. The PaaS Specification with respect to Alfresco means the Alfresco Cloud Services Specification located at https://www.alfresco.com/cloud/docs/alfresco-cloud-services-specification, and with respect to Nuxeo, the Nuxeo Cloud Services Specification located at https://legal.hyland.com/#nuxeo-cloud-services-specification. After the Effective Date, and subject to Section 1.3 of this PaaS Schedule, Hyland reserves the right to modify the applicable PaaS Specification from time to time. The modifications or the revised PaaS Specification will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform Customer’s day-to-day operations.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service or Software issue or error.
“Service Limits” means the limitations set forth in an Order Form.
“Software” means Software as defined in the General Terms Schedule that is made available through the Hyland Cloud Service.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” or “Pre-Production Environment” means an environment of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties .
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service and Software available to Customer pursuant to the Agreement, the PaaS Security Attachment, Documentation and the applicable PaaS Specification; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.3 Changes to Hyland Cloud Services. Customer acknowledges that the Hyland Cloud Service is made available on a platform-as-a-service basis on the standard, general deployment model offered by Hyland. Hyland reserves the right to modify the Hyland Cloud Service and its delivery. Hyland will use reasonable efforts to notify Customer in advance of any changes that would materially impact Customer’s use or operation of the Hyland Cloud Service. However, Hyland agrees it will not modify the Hyland Cloud Service during the term of the Agreement in such a way as to materially reduce the functionality or performance of the applicable Hyland Cloud Service.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service and Software Access Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided herein), limited right to access the Hyland Cloud Service and Software as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. Use of the Hyland Cloud Service and Software is limited to the number of Instances, Users and/or Service Limits, as applicable, designated in the Order Form.
The Hyland Cloud Service and Software is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service or Software in any manner not expressly permitted by the Agreement. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and Software and shall only access the Hyland Cloud Service and Software in a manner consistent with the Agreement, the PaaS Security Attachment, and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service or Software (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service and Software made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and Software and are not intended to be used on a stand-alone basis.
2.2 Nuxeo-Branded Hyland Cloud Services. If the Hyland Cloud Service(s) purchased by Customer includes Nuxeo as indicated on the Order Form, such Nuxeo-branded Hyland Cloud Services shall be subject to the additional terms set forth in this Section.
(a) Provision of Access. Subject to the terms and conditions contained in the Agreement, on or as soon as reasonably practicable after the Effective Date of the Agreement or as set forth in the applicable Order Form for the purchase of Nuxeo Hyland Cloud Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access such Hyland Cloud Services, which may include the following as set forth in the Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Hyland Cloud Services Support terms in this PaaS Schedule. Hyland will provide access to Nuxeo Studio in accordance with the applicable PaaS Specification.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Notwithstanding anything to the contrary, Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform as part of the Hyland Cloud Services is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and the Agreement does not impact any rights and obligations with respect to such Nuxeo Platform. During the term of the Agreement and as part of the Hyland Cloud Service, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Hyland Cloud Services Support provisions set forth in this PaaS Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Instances as part of the Hyland Cloud Services during the term of the Agreement. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
2.3 Volume Use Restriction. There are certain Software products or services that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Customer will notify Hyland promptly if it has exceeded the number of Instances, Service Limits and/or authorized Users indicated in the Order Form. Hyland will invoice Customer for the applicable fees after either the execution of a new Order Form or Hyland’s acceptance of Customer’s purchase order for such additional volume, and Customer will pay such fees in accordance with the Agreement. Customer will maintain accurate records necessary to verify the number of Instances it uses, Users it authorizes and Service Limits used. Upon Hyland’s written request, Customer will provide Hyland with such records within ten (10) business-days.
2.4 Test Environments. Customer may purchase limited access to Testing Environments. Hyland agrees that the security measures described in the PaaS Security Attachment are also applied to the Testing Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment. If, at any time, Customer is not satisfied with the Testing Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment.
2.5 No High Risk Use. The Hyland Cloud Service and Software are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service and Software are not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service or Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Hyland Cloud Service or Software is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service or Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s or its Contractors’ use of the Hyland Cloud Service or Software in connection with any High Risk Use.
2.6 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service and Software in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment. If such assessment uncovers underreported volume usage in accordance with the Agreement, Hyland will give Customer written notice of the noncompliance, including the number of underreported Instances, Service Limits and/or authorized Users, and a new or adjusted invoice to account for such increased volume. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported volume. If the assessment reveals that Customer underreported more than one of the Instances, and/or Service Limits, Customer shall pay Hyland for the reasonable costs incurred to perform the assessment.
2.7 Third Party Services and Content. The Hyland Cloud Service or Software may contain functionality which allows Customer to: (a) access, link, purchase, deploy or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided and licensed by third parties and (b) access third party websites and content. In the event Customer elects to utilize or deploy any such third party components, such components are provided and subject to the licensing and use terms provided by the applicable third party licensor, and Customer must procure all necessary license rights for Customer and Hyland to use and operate such components prior to their deployment. Hyland is only providing hosting services related to such third party components and has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users or Contractors with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service or Software. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service or Software. Hyland reserves the right to refuse to implement any incompatible third party services and content or third party components which create a material information security or operational risk. Hyland is not responsible for any delays or inability to perform the Hyland Cloud Service or Software to the extent caused by any third party services and content.
2.8 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.9 Prohibited Conduct. Customer agrees not to directly or indirectly: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service and Software; (b) sell, transfer, rent, lease sub-license, commercialize or otherwise transfer rights or usage to: (i) the Hyland Cloud Service; (ii) Software; or (iii) any modified version or derivative work of the Hyland Cloud Service or Software created by the Customer or for the Customer; ; (c) alter or modify the Hyland Cloud Service or Software; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service or Software, or prepare derivative works therefrom; (e) combine, call, link to, or otherwise use the Hyland Cloud Service or Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Users; or (f) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.10 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.11 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
2.12 Development Sandbox. During the term of the Agreement, Customer may purchase limited access to a Development Sandbox pursuant to an Order Form. Regardless of the deployment method of such Development Sandbox (whether on-prem or hosted by Hyland as part of the Hyland Cloud Service, as applicable), Customer acknowledges and agrees that (i) the PaaS Specification; (ii) the Hyland Cloud Services Support; and (iii) the PaaS Security Attachment shall not apply to such Development Sandbox. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Development Sandbox. If, at any time, Customer is not satisfied with the Development Sandbox, Customer’s sole and exclusive remedy shall be to stop using the Development Sandbox.
3. PRICES, INVOICES AND PAYMENT.
3.1 PaaS Fees. Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the PaaS Fees for the Hyland Cloud Service and Software for any renewal period by up to ten percent (10%) of the previous year’s PaaS Fees. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon either the execution of an Order Form or Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. To the extent applicable, Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Add-On Services, the Hyland Cloud Service and Software, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Add-On Service, the Hyland Cloud Service and Software, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service, Software, or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Software, Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service and Software, including assistance and advice related to the operation of the Hyland Cloud Service and Software.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service or Software which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service or Software to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service or Software, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error, which shall include, to the extent applicable, functioning test code that reproduces and isolates each issue. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service or Software, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will apply or make available all Upgrades and Enhancements, if and when released during the term of the Agreement.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. To the extent applicable, Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Service from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service or Software.
5.2 EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or Software or from any error or defect in any configuration of any component of the Hyland Cloud Service or Software, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service or Software if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service or Software; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service or Software; (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); (6) in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule); or (7) for third party components that may be deployed along with the Hyland Cloud Services or Software or issues caused by third party software not licensed through Hyland or provided by Hyland. Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 TECHNICAL SUPPORT CONTACTS. Hyland will provide Hyland Cloud Service Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of the Agreement by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.4 PROFESSIONAL SERVICES. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY.
6.1 Information Security Program. During the term of the Agreement, Hyland shall maintain a security program which shall conform to the PaaS Security Attachment. Customer acknowledges and agrees that Hyland cannot control and is not responsible for information security outside of Hyland’s reasonable control, including without limitation transmission of data across the internet, third party network communications facilities or similar network providers. Furthermore, Customer acknowledges and agrees that the Hyland Cloud Services and Software rely upon certain key third party suppliers, and their information security obligations (and those of Hyland accordingly) are limited to that third party supplier’s information security program; provided, however, that Hyland will provide copies of such program terms where available, and Hyland remains responsible for configuring any such third party supplier’s tools and networks in accordance with the Hyland information security policies where such configuration is under Hyland’s reasonable control.
6.2 Virus and Malicious Code Detection. Hyland will have in place reasonable measures designed to detect Malicious Code and to help ensure the Hyland Cloud Service and Software will not transmit Malicious Code throughout the term of the Agreement. “Malicious Code” means viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs designed to permit unauthorized access to or intrusion upon, disabling or disruption of, erasure of or interference with the Hyland Cloud Service or Software, Customer’s hardware or data.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service or Software;
(b) Customer will comply with Hyland’s Acceptable Use Policy;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and Software and compliance with the Documentation, the applicable PaaS Specification and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and Software and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service or Software, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and Software and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and Software and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service and Software security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service and Software to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
(i) Customer will provide all reasonably necessary access, Customer contacts and other information and cooperation as necessary for Hyland to effectively provide the Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service and Software. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service or Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service and Software Limited Warranty. Hyland warrants to Customer that during the term of the Agreement, the Hyland Cloud Service and Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service or Software if: (i) any component of the Hyland Cloud Service or Software has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service or Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service and Software Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service or Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its termination obligations under the Agreement, Hyland will provide a refund to Customer of the “unused portion of prepaid PaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service or Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service and Software in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service or Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service or Software, or to replace the relevant portions with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the Agreement upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid PaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (u) failure to use updates to the Hyland Cloud Service or Software provided by Hyland; (v) any Customer Data; (w) use of the Hyland Cloud Service or Software other than as expressly permitted by the Agreement; (x) the combination of the Hyland Cloud Service, Software, or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service or Software, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE OR SOFTWARE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARYIN THIS AGREEMENT OR ANY OTHER CONTRACT (INCLUDING WITHOUT LIMITATION A BUSINESS ASSOCIATE AGREEMENT OR DATA PROCESSING AGREEMENT), IN THE CASE OF AN UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER DATA FOR WHICH A CLAIM AGAINST HYLAND (OR ANY OF ITS AFFILIATES OR SUPPLIERS) ARISES (A “CUSTOMER DATA INCIDENT"), THE FOLLOWING LIMITATIONS SHALL APPLY:
(A) THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE TIMES FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT; AND
(B) NEITHER HYLAND NOR ANY OF ITS AFFILIATES OR SUPPLIERS SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITY THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES, LOSSES, EXPENSES OR COSTS.
10.2 Subject to Section 10.1(A) of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service or Software pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including PaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil Ltda. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this PaaS Schedule available in other languages at this online location. This English language version of this PaaS Schedule controls over any version of the PaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this PaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the PaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda. Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda. this Exhibit A shall apply:
1. The PaaS Fees Section of this PaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the PaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for PaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
1. The last sentence of the No High Risk Use Section of the PaaS Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
2. The following provision shall be added to the Customer Limited Warranty Section of the PaaS Schedule:
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this PaaS Schedule is excluded.
3. Section 9.2 of the PaaS Schedule shall not apply.
4. Section 10.1 of the PaaS Schedule shall be replaced in its entirety as follows:
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER CONTRACT (INCLUDING WITHOUT LIMITATION A BUSINESS ASSOCIATE AGREEMENT OR DATA PROCESSING AGREEMENT), IN THE CASE OF AN UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER DATA FOR WHICH A CLAIM AGAINST HYLAND (OR ANY OF ITS AFFILIATES OR SUPPLIERS) ARISES (A “CUSTOMER DATA INCIDENT"), THE FOLLOWING LIMITATIONS SHALL APPLY (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE):
(A) THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE (3) TIMES THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Effective April 25th 2024 to June 29th 2024
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PLATFORM-AS-A-SERVICE SCHEDULE (PAAS)
This Platform-as-a-Service Schedule (“PaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this PaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this PaaS Schedule, and any other agreement within which the Incorporating Document is incorporated. The parties acknowledge and agree that this PaaS Schedule applies to the Hyland Cloud Service (as defined herein) and Software provided on a platform-as-a-service basis; the Software-as-a-Service Schedule does not apply to the Hyland Cloud Service or Software as defined herein.
DEFINED TERMS.
All capitalized terms used in this PaaS Schedule shall have the meaning ascribed them in this PaaS Schedule or, if not defined in this PaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this PaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this PaaS Schedule, this PaaS Schedule shall be interpreted to include all definitions, as the context requires.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hyland Cloud Services.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the PaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Development Sandbox” means a set of environments ordered pursuant to an Order Form during the term for the applicable Hyland Cloud Service and used for testing with non-production data.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service and Software, or (b) if no such “Help Files” are included in the Hyland Cloud Service or Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service or Software.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Service” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, and Hosted 3rd Party Software made available on a platform-as-a-service basis, whether owned by Hyland or a third party, and as set forth on the applicable Order Form. For clarity, the Hyland Cloud Service does not include the Nuxeo Platform or Alfresco Community Version.
“Hyland Cloud Service Support” means the services described in this PaaS Schedule.
“Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. An Instance may also be referred to as a “Nuxeo Server” and may be illustrated as a “Nuxeo Server”, “Nuxeo Node” or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications solely as it relates to Nuxeo-branded Hyland Cloud Services as set forth on an Order Form.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“PaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service and Software. The initial PaaS Fees are set forth in either the Order Form.
“PaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#paas-security-attachment. The PaaS Security Attachment describes Hyland's current security processes and procedures for the products and services purchased under this PaaS Schedule. These processes and procedures may be updated from time to time, but will not be materially reduced.
“PaaS Specification” means the additional terms and descriptions of the applicable Hyland Cloud Services and associated delivery terms, which may include without limitation functionality, support, performance standards, information security and similar information. The PaaS Specification with respect to Alfresco means the Alfresco Cloud Services Specification located at https://www.alfresco.com/cloud/docs/alfresco-cloud-services-specification, and with respect to Nuxeo, the Nuxeo Cloud Services Specification located at https://legal.hyland.com/#nuxeo-cloud-services-specification. After the Effective Date, and subject to Section 1.3 of this PaaS Schedule, Hyland reserves the right to modify the applicable PaaS Specification from time to time. The modifications or the revised PaaS Specification will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform Customer’s day-to-day operations.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service or Software issue or error.
“Service Limits” means the limitations set forth in an Order Form.
“Software” means Software as defined in the General Terms Schedule that is made available through the Hyland Cloud Service.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” or “Pre-Production Environment” means an environment of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties .
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service and Software available to Customer pursuant to the Agreement, the PaaS Security Attachment, Documentation and the applicable PaaS Specification; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.3 Changes to Hyland Cloud Services. Customer acknowledges that the Hyland Cloud Service is made available on a platform-as-a-service basis on the standard, general deployment model offered by Hyland. Hyland reserves the right to modify the Hyland Cloud Service and its delivery. Hyland will use reasonable efforts to notify Customer in advance of any changes that would materially impact Customer’s use or operation of the Hyland Cloud Service. However, Hyland agrees it will not modify the Hyland Cloud Service during the term of the Agreement in such a way as to materially reduce the functionality or performance of the applicable Hyland Cloud Service.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service and Software Access Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided herein), limited right to access the Hyland Cloud Service and Software as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. Use of the Hyland Cloud Service and Software is limited to the number of Instances, Users and/or Service Limits, as applicable, designated in the Order Form.
The Hyland Cloud Service and Software is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service or Software in any manner not expressly permitted by the Agreement. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and Software and shall only access the Hyland Cloud Service and Software in a manner consistent with the Agreement, the PaaS Security Attachment, and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service or Software (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service and Software made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and Software and are not intended to be used on a stand-alone basis.
2.2 Nuxeo-Branded Hyland Cloud Services. If the Hyland Cloud Service(s) purchased by Customer includes Nuxeo as indicated on the Order Form, such Nuxeo-branded Hyland Cloud Services shall be subject to the additional terms set forth in this Section.
(a) Provision of Access. Subject to the terms and conditions contained in the Agreement, on or as soon as reasonably practicable after the Effective Date of the Agreement or as set forth in the applicable Order Form for the purchase of Nuxeo Hyland Cloud Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access such Hyland Cloud Services, which may include the following as set forth in the Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Hyland Cloud Services Support terms in this PaaS Schedule. Hyland will provide access to Nuxeo Studio in accordance with the applicable PaaS Specification.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Notwithstanding anything to the contrary, Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform as part of the Hyland Cloud Services is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and the Agreement does not impact any rights and obligations with respect to such Nuxeo Platform. During the term of the Agreement and as part of the Hyland Cloud Service, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Hyland Cloud Services Support provisions set forth in this PaaS Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Instances as part of the Hyland Cloud Services during the term of the Agreement. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
2.3 Volume Use Restriction. There are certain Software products or services that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Customer will notify Hyland promptly if it has exceeded the number of Instances, Service Limits and/or authorized Users indicated in the Order Form. Hyland will invoice Customer for the applicable fees after either the execution of a new Order Form or Hyland’s acceptance of Customer’s purchase order for such additional volume, and Customer will pay such fees in accordance with the Agreement. Customer will maintain accurate records necessary to verify the number of Instances it uses, Users it authorizes and Service Limits used. Upon Hyland’s written request, Customer will provide Hyland with such records within ten (10) business-days.
2.4 Test Environments. Customer may purchase limited access to Testing Environments. Hyland agrees that the security measures described in the PaaS Security Attachment are also applied to the Testing Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment. If, at any time, Customer is not satisfied with the Testing Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment.
2.5 No High Risk Use. The Hyland Cloud Service and Software are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service and Software are not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service or Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Hyland Cloud Service or Software is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service or Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s or its Contractors’ use of the Hyland Cloud Service or Software in connection with any High Risk Use.
2.6 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service and Software in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment. If such assessment uncovers underreported volume usage in accordance with the Agreement, Hyland will give Customer written notice of the noncompliance, including the number of underreported Instances, Service Limits and/or authorized Users, and a new or adjusted invoice to account for such increased volume. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported volume. If the assessment reveals that Customer underreported more than one of the Instances, and/or Service Limits, Customer shall pay Hyland for the reasonable costs incurred to perform the assessment.
2.7 Third Party Services and Content. The Hyland Cloud Service or Software may contain functionality which allows Customer to: (a) access, link, purchase, deploy or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided and licensed by third parties and (b) access third party websites and content. In the event Customer elects to utilize or deploy any such third party components, such components are provided and subject to the licensing and use terms provided by the applicable third party licensor, and Customer must procure all necessary license rights for Customer and Hyland to use and operate such components prior to their deployment. Hyland is only providing hosting services related to such third party components and has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users or Contractors with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service or Software. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service or Software. Hyland reserves the right to refuse to implement any incompatible third party services and content or third party components which create a material information security or operational risk. Hyland is not responsible for any delays or inability to perform the Hyland Cloud Service or Software to the extent caused by any third party services and content.
2.8 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.9 Prohibited Conduct. Customer agrees not to directly or indirectly: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service and Software; (b) sell, transfer, rent, lease sub-license, commercialize or otherwise transfer rights or usage to: (i) the Hyland Cloud Service; (ii) Software; or (iii) any modified version or derivative work of the Hyland Cloud Service or Software created by the Customer or for the Customer; ; (c) alter or modify the Hyland Cloud Service or Software; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service or Software, or prepare derivative works therefrom; (e) combine, call, link to, or otherwise use the Hyland Cloud Service or Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Users; or (f) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.10 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.11 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
2.12 Development Sandbox. During the term of the Agreement, Customer may purchase limited access to a Development Sandbox pursuant to an Order Form. Regardless of the deployment method of such Development Sandbox (whether on-prem or hosted by Hyland as part of the Hyland Cloud Service, as applicable), Customer acknowledges and agrees that (i) the PaaS Specification; (ii) the Hyland Cloud Services Support; and (iii) the PaaS Security Attachment shall not apply to such Development Sandbox. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Development Sandbox. If, at any time, Customer is not satisfied with the Development Sandbox, Customer’s sole and exclusive remedy shall be to stop using the Development Sandbox.
3. PRICES, INVOICES AND PAYMENT.
3.1 PaaS Fees. Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the PaaS Fees for the Hyland Cloud Service and Software for any renewal period by up to ten percent (10%) of the previous year’s PaaS Fees. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon either the execution of an Order Form or Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. To the extent applicable, Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Add-On Services, the Hyland Cloud Service and Software, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Add-On Service, the Hyland Cloud Service and Software, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service, Software, or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Software, Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service and Software, including assistance and advice related to the operation of the Hyland Cloud Service and Software.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service or Software which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service or Software to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service or Software, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error, which shall include, to the extent applicable, functioning test code that reproduces and isolates each issue. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service or Software, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will apply or make available all Upgrades and Enhancements, if and when released during the term of the Agreement.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. To the extent applicable, Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Service from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service or Software.
5.2 EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or Software or from any error or defect in any configuration of any component of the Hyland Cloud Service or Software, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service or Software if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service or Software; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service or Software; (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); (6) in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule); or (7) for third party components that may be deployed along with the Hyland Cloud Services or Software or issues caused by third party software not licensed through Hyland or provided by Hyland. Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 TECHNICAL SUPPORT CONTACTS. Hyland will provide Hyland Cloud Service Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of the Agreement by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.4 PROFESSIONAL SERVICES. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY.
6.1 Information Security Program. During the term of the Agreement, Hyland shall maintain a security program which shall conform to the PaaS Security Attachment. Customer acknowledges and agrees that Hyland cannot control and is not responsible for information security outside of Hyland’s reasonable control, including without limitation transmission of data across the internet, third party network communications facilities or similar network providers. Furthermore, Customer acknowledges and agrees that the Hyland Cloud Services and Software rely upon certain key third party suppliers, and their information security obligations (and those of Hyland accordingly) are limited to that third party supplier’s information security program; provided, however, that Hyland will provide copies of such program terms where available, and Hyland remains responsible for configuring any such third party supplier’s tools and networks in accordance with the Hyland information security policies where such configuration is under Hyland’s reasonable control.
6.2 Virus and Malicious Code Detection. Hyland will have in place reasonable measures designed to detect Malicious Code and to help ensure the Hyland Cloud Service and Software will not transmit Malicious Code throughout the term of the Agreement. “Malicious Code” means viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs designed to permit unauthorized access to or intrusion upon, disabling or disruption of, erasure of or interference with the Hyland Cloud Service or Software, Customer’s hardware or data.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service or Software;
(b) Customer will comply with Hyland’s Acceptable Use Policy;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and Software and compliance with the Documentation, the applicable PaaS Specification and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and Software and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service or Software, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and Software and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and Software and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service and Software security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service and Software to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
(i) Customer will provide all reasonably necessary access, Customer contacts and other information and cooperation as necessary for Hyland to effectively provide the Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service and Software. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service or Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service and Software Limited Warranty. Hyland warrants to Customer that during the term of the Agreement, the Hyland Cloud Service and Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service or Software if: (i) any component of the Hyland Cloud Service or Software has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service or Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service and Software Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service or Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its termination obligations under the Agreement, Hyland will provide a refund to Customer of the “unused portion of prepaid PaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service or Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service and Software in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service or Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service or Software, or to replace the relevant portions with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the Agreement upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid PaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (u) failure to use updates to the Hyland Cloud Service or Software provided by Hyland; (v) any Customer Data; (w) use of the Hyland Cloud Service or Software other than as expressly permitted by the Agreement; (x) the combination of the Hyland Cloud Service, Software, or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service or Software, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE OR SOFTWARE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIABILITY CAP IN SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE TIMES FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT.
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service or Software pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including PaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil Ltda. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this PaaS Schedule available in other languages at this online location. This English language version of this PaaS Schedule controls over any version of the PaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this PaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the PaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda. Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda. this Exhibit A shall apply:
1. The PaaS Fees Section of this PaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the PaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for PaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
1. The last sentence of the No High Risk Use Section of the PaaS Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
2. The following provision shall be added to the Customer Limited Warranty Section of the PaaS Schedule:
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this PaaS Schedule is excluded.
3. Section 9.2 of the PaaS Schedule shall not apply.
4. Section 10.1 of the PaaS Schedule shall be replaced in its entirety as follows:
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE (3) TIMES THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Effective February 27th 2024 to April 25th 2024
DownloadTable of Contents
PLATFORM-AS-A-SERVICE SCHEDULE (PAAS)
This Platform-as-a-Service Schedule (“PaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this PaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this PaaS Schedule, and any other agreement within which the Incorporating Document is incorporated. The parties acknowledge and agree that this PaaS Schedule applies to the Hyland Cloud Service (as defined herein) and Software provided on a platform-as-a-service basis; the Software-as-a-Service Schedule does not apply to the Hyland Cloud Service or Software as defined herein.
DEFINED TERMS.
All capitalized terms used in this PaaS Schedule shall have the meaning ascribed them in this PaaS Schedule or, if not defined in this PaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this PaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this PaaS Schedule, this PaaS Schedule shall be interpreted to include all definitions, as the context requires.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hyland Cloud Services.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the PaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Development Sandbox” means a set of environments ordered pursuant to an Order Form during the term for the applicable Hyland Cloud Service and used for testing with non-production data.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service and Software, or (b) if no such “Help Files” are included in the Hyland Cloud Service or Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service or Software.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Service” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, and Hosted 3rd Party Software made available on a platform-as-a-service basis, whether owned by Hyland or a third party, and as set forth on the applicable Order Form. For clarity, the Hyland Cloud Service does not include the Nuxeo Platform or Alfresco Community Version.
“Hyland Cloud Service Support” means the services described in this PaaS Schedule.
“Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. An Instance may also be referred to as a “Nuxeo Server” and may be illustrated as a “Nuxeo Server”, “Nuxeo Node” or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications solely as it relates to Nuxeo-branded Hyland Cloud Services as set forth on an Order Form.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“PaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service and Software. The initial PaaS Fees are set forth in either the Order Form.
“PaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#paas-security-attachment. The PaaS Security Attachment describes Hyland's current security processes and procedures for the products and services purchased under this PaaS Schedule. These processes and procedures may be updated from time to time, but will not be materially reduced.
“PaaS Specification” means the additional terms and descriptions of the applicable Hyland Cloud Services and associated delivery terms, which may include without limitation functionality, support, performance standards, information security and similar information. The PaaS Specification with respect to Alfresco means the Alfresco Cloud Services Specification located at https://www.alfresco.com/cloud/docs/alfresco-cloud-services-specification, and with respect to Nuxeo, the Nuxeo Cloud Services Specification provided separately. After the Effective Date, and subject to Section 1.3 of this PaaS Schedule, Hyland reserves the right to modify the applicable PaaS Specification from time to time. The modifications or the revised PaaS Specification will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform Customer’s day-to-day operations.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service or Software issue or error.
“Service Limits” means the limitations set forth in an Order Form.
“Software” means Software as defined in the General Terms Schedule that is made available through the Hyland Cloud Service.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” or “Pre-Production Environment” means an environment of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties .
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of the Agreement Hyland will: (a) make the Hyland Cloud Service and Software available to Customer pursuant to the Agreement, the PaaS Security Attachment, Documentation and the applicable PaaS Specification; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.3 Changes to Hyland Cloud Services. Customer acknowledges that the Hyland Cloud Service is made available on a platform-as-a-service basis on the standard, general deployment model offered by Hyland. Hyland reserves the right to modify the Hyland Cloud Service and its delivery. Hyland will use reasonable efforts to notify Customer in advance of any changes that would materially impact Customer’s use or operation of the Hyland Cloud Service. However, Hyland agrees it will not modify the Hyland Cloud Service during the term of the Agreement in such a way as to materially reduce the functionality or performance of the applicable Hyland Cloud Service.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service and Software Access Grant. During the term of the Agreement, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided herein), limited right to access the Hyland Cloud Service and Software as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. Use of the Hyland Cloud Service and Software is limited to the number of Instances, Users and/or Service Limits, as applicable, designated in the Order Form.
The Hyland Cloud Service and Software is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service or Software in any manner not expressly permitted by the Agreement. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and Software and shall only access the Hyland Cloud Service and Software in a manner consistent with the Agreement, the PaaS Security Attachment, and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service or Software (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service and Software made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and Software and are not intended to be used on a stand-alone basis.
2.2 Nuxeo-Branded Hyland Cloud Services. If the Hyland Cloud Service(s) purchased by Customer includes Nuxeo as indicated on the Order Form, such Nuxeo-branded Hyland Cloud Services shall be subject to the additional terms set forth in this Section.
(a) Provision of Access. Subject to the terms and conditions contained in the Agreement, on or as soon as reasonably practicable after the Effective Date of the Agreement or as set forth in the applicable Order Form for the purchase of Nuxeo Hyland Cloud Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access such Hyland Cloud Services, which may include the following as set forth in the Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Hyland Cloud Services Support terms in this PaaS Schedule. Hyland will provide access to Nuxeo Studio in accordance with the applicable PaaS Specification.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Notwithstanding anything to the contrary, Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform as part of the Hyland Cloud Services is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and the Agreement does not impact any rights and obligations with respect to such Nuxeo Platform. During the term of the Agreement and as part of the Hyland Cloud Service, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Hyland Cloud Services Support provisions set forth in this PaaS Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Instances as part of the Hyland Cloud Services during the term of the Agreement. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
2.3 Volume Use Restriction. There are certain Software products or services that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Customer will notify Hyland promptly if it has exceeded the number of Instances, Service Limits and/or authorized Users indicated in the Order Form. Hyland will invoice Customer for the applicable fees after either the execution of a new Order Form or Hyland’s acceptance of Customer’s purchase order for such additional volume, and Customer will pay such fees in accordance with the Agreement. Customer will maintain accurate records necessary to verify the number of Instances it uses, Users it authorizes and Service Limits used. Upon Hyland’s written request, Customer will provide Hyland with such records within ten (10) business-days.
2.4 Test Environments. Customer may purchase limited access to Testing Environments. Hyland agrees that the security measures described in the PaaS Security Attachment are also applied to the Testing Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment. If, at any time, Customer is not satisfied with the Testing Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment.
2.5 No High Risk Use. The Hyland Cloud Service and Software are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service and Software are not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service or Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Hyland Cloud Service or Software is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service or Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s or its Contractors’ use of the Hyland Cloud Service or Software in connection with any High Risk Use.
2.6 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service and Software in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment. If such assessment uncovers underreported volume usage in accordance with the Agreement, Hyland will give Customer written notice of the noncompliance, including the number of underreported Instances, Service Limits and/or authorized Users, and a new or adjusted invoice to account for such increased volume. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported volume. If the assessment reveals that Customer underreported more than one of the Instances, and/or Service Limits, Customer shall pay Hyland for the reasonable costs incurred to perform the assessment.
2.7 Third Party Services and Content. The Hyland Cloud Service or Software may contain functionality which allows Customer to: (a) access, link, purchase, deploy or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided and licensed by third parties and (b) access third party websites and content. In the event Customer elects to utilize or deploy any such third party components, such components are provided and subject to the licensing and use terms provided by the applicable third party licensor, and Customer must procure all necessary license rights for Customer and Hyland to use and operate such components prior to their deployment. Hyland is only providing hosting services related to such third party components and has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users or Contractors with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service or Software. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service or Software. Hyland reserves the right to refuse to implement any incompatible third party services and content or third party components which create a material information security or operational risk. Hyland is not responsible for any delays or inability to perform the Hyland Cloud Service or Software to the extent caused by any third party services and content.
2.8 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.9 Prohibited Conduct. Customer agrees not to directly or indirectly: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service and Software; (b) sell, transfer, rent, lease sub-license, commercialize or otherwise transfer rights or usage to: (i) the Hyland Cloud Service; (ii) Software; or (iii) any modified version or derivative work of the Hyland Cloud Service or Software created by the Customer or for the Customer; ; (c) alter or modify the Hyland Cloud Service or Software; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service or Software, or prepare derivative works therefrom; (e) combine, call, link to, or otherwise use the Hyland Cloud Service or Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Users; or (f) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.10 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.11 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
2.12 Development Sandbox. During the term of the Agreement, Customer may purchase limited access to a Development Sandbox pursuant to an Order Form. Regardless of the deployment method of such Development Sandbox (whether on-prem or hosted by Hyland as part of the Hyland Cloud Service, as applicable), Customer acknowledges and agrees that (i) the PaaS Specification; (ii) the Hyland Cloud Services Support; and (iii) the PaaS Security Attachment shall not apply to such Development Sandbox. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Development Sandbox. If, at any time, Customer is not satisfied with the Development Sandbox, Customer’s sole and exclusive remedy shall be to stop using the Development Sandbox.
3. PRICES, INVOICES AND PAYMENT.
3.1 PaaS Fees. Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the PaaS Fees for the Hyland Cloud Service and Software for any renewal period by up to ten percent (10%) of the previous year’s PaaS Fees. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon either the execution of an Order Form or Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. To the extent applicable, Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Add-On Services, the Hyland Cloud Service and Software, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Add-On Service, the Hyland Cloud Service and Software, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service, Software, or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Software, Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service and Software, including assistance and advice related to the operation of the Hyland Cloud Service and Software.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service or Software which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service or Software to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service or Software, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error, which shall include, to the extent applicable, functioning test code that reproduces and isolates each issue. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service or Software, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will apply or make available all Upgrades and Enhancements, if and when released during the term of the Agreement.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. To the extent applicable, Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Service from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service or Software.
5.2 EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or Software or from any error or defect in any configuration of any component of the Hyland Cloud Service or Software, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service or Software if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service or Software; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service or Software; (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); (6) in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule); or (7) for third party components that may be deployed along with the Hyland Cloud Services or Software or issues caused by third party software not licensed through Hyland or provided by Hyland. Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 TECHNICAL SUPPORT CONTACTS. Hyland will provide Hyland Cloud Service Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of the Agreement by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.4 PROFESSIONAL SERVICES. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY.
6.1 Information Security Program. During the term of the Agreement, Hyland shall maintain a security program which shall conform to the PaaS Security Attachment. Customer acknowledges and agrees that Hyland cannot control and is not responsible for information security outside of Hyland’s reasonable control, including without limitation transmission of data across the internet, third party network communications facilities or similar network providers. Furthermore, Customer acknowledges and agrees that the Hyland Cloud Services and Software rely upon certain key third party suppliers, and their information security obligations (and those of Hyland accordingly) are limited to that third party supplier’s information security program; provided, however, that Hyland will provide copies of such program terms where available, and Hyland remains responsible for configuring any such third party supplier’s tools and networks in accordance with the Hyland information security policies where such configuration is under Hyland’s reasonable control.
6.2 Virus and Malicious Code Detection. Hyland will have in place reasonable measures designed to detect Malicious Code and to help ensure the Hyland Cloud Service and Software will not transmit Malicious Code throughout the term of the Agreement. “Malicious Code” means viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs designed to permit unauthorized access to or intrusion upon, disabling or disruption of, erasure of or interference with the Hyland Cloud Service or Software, Customer’s hardware or data.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under the Agreement:
(a) except as otherwise expressly permitted under the terms of the Agreement, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service or Software;
(b) Customer will comply with Hyland’s Acceptable Use Policy;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and Software and compliance with the Documentation, the applicable PaaS Specification and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and Software and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service or Software, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and Software and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and Software and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service and Software security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service and Software to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
(i) Customer will provide all reasonably necessary access, Customer contacts and other information and cooperation as necessary for Hyland to effectively provide the Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service and Software. Hyland shall have no responsibility or liability under the Agreement for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service or Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service and Software Limited Warranty. Hyland warrants to Customer that during the term of the Agreement, the Hyland Cloud Service and Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service or Software if: (i) any component of the Hyland Cloud Service or Software has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service or Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service and Software Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service or Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its termination obligations under the Agreement, Hyland will provide a refund to Customer of the “unused portion of prepaid PaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service or Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service and Software in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service or Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service or Software, or to replace the relevant portions with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate the Agreement upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid PaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (u) failure to use updates to the Hyland Cloud Service or Software provided by Hyland; (v) any Customer Data; (w) use of the Hyland Cloud Service or Software other than as expressly permitted by the Agreement; (x) the combination of the Hyland Cloud Service, Software, or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service or Software, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE OR SOFTWARE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIABILITY CAP IN SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE TIMES FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT.
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service or Software pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including PaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil Ltda. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this PaaS Schedule available in other languages at this online location. This English language version of this PaaS Schedule controls over any version of the PaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this PaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the PaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda. Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda. this Exhibit A shall apply:
1. The PaaS Fees Section of this PaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the PaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for PaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
1. The last sentence of the No High Risk Use Section of the PaaS Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
2. The following provision shall be added to the Customer Limited Warranty Section of the PaaS Schedule:
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this PaaS Schedule is excluded.
3. Section 9.2 of the PaaS Schedule shall not apply.
4. Section 10.1 of the PaaS Schedule shall be replaced in its entirety as follows:
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE (3) TIMES THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Effective October 4th 2023 to February 27th 2024
DownloadTable of Contents
PLATFORM-AS-A-SERVICE SCHEDULE
This Platform-as-a-Service Schedule (“PaaS Schedule”) is part of the Master Agreement, Order Form or other agreement or document entered into between Customer and Hyland, which incorporates this PaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this PaaS Schedule, and any other agreement within which the Incorporating Document is incorporated. The parties acknowledge and agree that this PaaS Schedule applies to the Hyland Cloud Service (as defined herein) and Software provided on a platform-as-a-service basis; the Software-as-a-Service Schedule does not apply to the Hyland Cloud Service or Software as defined herein.
DEFINED TERMS.
All capitalized terms used in this PaaS Schedule shall have the meaning ascribed them in this PaaS Schedule or, if not defined in this PaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this PaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in the Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this PaaS Schedule, this PaaS Schedule shall be interpreted to include all definitions, as the context requires.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hyland Cloud Services.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the PaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Development Sandbox” means a set of environments ordered pursuant to an Order Form during the term for the applicable Hyland Cloud Service and used for testing with non-production data.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service and Software, or (b) if no such “Help Files” are included in the Hyland Cloud Service or Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service or Software.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Service” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, and Hosted 3rd Party Software made available on a platform-as-a-service basis, whether owned by Hyland or a third party, and as set forth on the applicable Order Form. For clarity, the Hyland Cloud Service does not include the Nuxeo Platform or Alfresco Community Version.
“Hyland Cloud Service Support” means the services described in this PaaS Schedule.
“Initial Term” means unless otherwise defined in the General Terms Schedule, and as used in this PaaS Schedule, (a) the initial term for which Customer has purchased products or services governed by this PaaS Schedule as set forth on the Incorporating Document for such product or service; or (b) if an initial term is not set forth as described in (a), the three (3) year period that begins on the date of Hyland’s acceptance of the applicable purchase order.
“Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. An Instance may also be referred to as a “Nuxeo Server” and may be illustrated as a “Nuxeo Server”, “Nuxeo Node” or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications solely as it relates to Nuxeo-branded Hyland Cloud Services as set forth on an Order Form.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“PaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service and Software. The initial PaaS Fees are set forth in either the Order Form.
“PaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#paas-security-attachment. The PaaS Security Attachment describes Hyland's current security processes and procedures for the products and services purchased under this PaaS Schedule. These processes and procedures may be updated from time to time, but will not be materially reduced.
“PaaS Specification” means the additional terms and descriptions of the applicable Hyland Cloud Services and associated delivery terms, which may include without limitation functionality, support, performance standards, information security and similar information. The PaaS Specification with respect to Alfresco means the Alfresco Cloud Services Specification located at https://www.alfresco.com/cloud/docs/alfresco-cloud-services-specification, and with respect to Nuxeo, the Nuxeo Cloud Services Specification provided separately. After the Effective Date, and subject to Section 1.3 of this PaaS Schedule, Hyland reserves the right to modify the applicable PaaS Specification from time to time. The modifications or the revised PaaS Specification will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform Customer’s day-to-day operations.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service or Software issue or error.
“Service Limits” means the limitations set forth in an Order Form.
“Software” means Software as defined in the General Terms Schedule that is made available through the Hyland Cloud Service.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” or “Pre-Production Environment” means an environment of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Users” means: (i) employees of Customer and its Authorized Affiliate(s) that access and use the Hyland Cloud Service; and (ii) any additional users to which Customer is authorized to provide access to the Hyland Cloud Service as expressly agreed in writing between the parties .
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this PaaS Schedule Hyland will: (a) make the Hyland Cloud Service and Software available to Customer pursuant to this PaaS Schedule, the PaaS Security Attachment, Documentation and the applicable PaaS Specification; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.3 Changes to Hyland Cloud Services. Customer acknowledges that the Hyland Cloud Service is made available on a platform-as-a-service basis on the standard, general deployment model offered by Hyland. Hyland reserves the right to modify the Hyland Cloud Service and its delivery. Hyland will use reasonable efforts to notify Customer in advance of any changes that would materially impact Customer’s use or operation of the Hyland Cloud Service. However, Hyland agrees it will not modify the Hyland Cloud Service during the term of the PaaS Schedule in such a way as to materially reduce the functionality or performance of the applicable Hyland Cloud Service.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service and Software Access Grant. During the term of this PaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided herein), limited right to access the Hyland Cloud Service and Software as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. Use of the Hyland Cloud Service and Software is limited to the number of Instances, Users and/or Service Limits, as applicable, designated in the Order Form.
The Hyland Cloud Service and Software is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service or Software in any manner not expressly permitted by this PaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and Software and shall only access the Hyland Cloud Service and Software in a manner consistent with this PaaS Schedule, the PaaS Security Attachment, and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service or Software (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service and Software made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and Software and are not intended to be used on a stand-alone basis.
2.2 Nuxeo-Branded Hyland Cloud Services. If the Hyland Cloud Service(s) purchased by Customer includes Nuxeo as indicated on the Order Form, such Nuxeo-branded Hyland Cloud Services shall be subject to the additional terms set forth in this Section.
(a) Provision of Access. Subject to the terms and conditions contained in the Agreement, on or as soon as reasonably practicable after the Effective Date of the Agreement or as set forth in the applicable Order Form for the purchase of Nuxeo Hyland Cloud Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access such Hyland Cloud Services, which may include the following as set forth in the Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Hyland Cloud Services Support terms in this PaaS Schedule. Hyland will provide access to Nuxeo Studio in accordance with the applicable PaaS Specification.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Notwithstanding anything to the contrary, Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform as part of the Hyland Cloud Services is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and the Agreement does not impact any rights and obligations with respect to such Nuxeo Platform. During the term of the Agreement and as part of the Hyland Cloud Service, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Hyland Cloud Services Support provisions set forth in this PaaS Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Instances as part of the Hyland Cloud Services during the term of this PaaS Schedule. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
2.3 Volume Use Restriction. There are certain Software products or services that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Customer will notify Hyland promptly if it has exceeded the number of Instances, Service Limits and/or authorized Users indicated in the Order Form. Hyland will invoice Customer for the applicable fees after either the execution of a new Order Form or Hyland’s acceptance of Customer’s purchase order for such additional volume, and Customer will pay such fees in accordance with the Agreement. Customer will maintain accurate records necessary to verify the number of Instances it uses, Users it authorizes and Service Limits used. Upon Hyland’s written request, Customer will provide Hyland with such records within ten (10) business-days.
2.4 Test Environments. Customer may purchase limited access to Testing Environments. Hyland agrees that the security measures described in the PaaS Security Attachment are also applied to the Testing Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment. If, at any time, Customer is not satisfied with the Testing Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment.
2.5 No High Risk Use. The Hyland Cloud Service and Software are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service and Software are not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service or Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Hyland Cloud Service or Software is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service or Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s or its Contractors’ use of the Hyland Cloud Service or Software in connection with any High Risk Use.
2.6 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service and Software in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this PaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment. If such assessment uncovers underreported volume usage in accordance with this PaaS Schedule, Hyland will give Customer written notice of the noncompliance, including the number of underreported Instances, Service Limits and/or authorized Users, and a new or adjusted invoice to account for such increased volume. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported volume. If the assessment reveals that Customer underreported more than one of the Instances, and/or Service Limits, Customer shall pay Hyland for the reasonable costs incurred to perform the assessment.
2.7 Third Party Services and Content. The Hyland Cloud Service or Software may contain functionality which allows Customer to: (a) access, link, purchase, deploy or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided and licensed by third parties and (b) access third party websites and content. In the event Customer elects to utilize or deploy any such third party components, such components are provided and subject to the licensing and use terms provided by the applicable third party licensor, and Customer must procure all necessary license rights for Customer and Hyland to use and operate such components prior to their deployment. Hyland is only providing hosting services related to such third party components and has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users or Contractors with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service or Software. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service or Software. Hyland reserves the right to refuse to implement any incompatible third party services and content or third party components which create a material information security or operational risk. Hyland is not responsible for any delays or inability to perform the Hyland Cloud Service or Software to the extent caused by any third party services and content.
2.8 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.9 Prohibited Conduct. Customer agrees not to directly or indirectly: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service and Software; (b) sell, transfer, rent, lease sub-license, commercialize or otherwise transfer rights or usage to: (i) the Hyland Cloud Service; (ii) Software; or (iii) any modified version or derivative work of the Hyland Cloud Service or Software created by the Customer or for the Customer; ; (c) alter or modify the Hyland Cloud Service or Software; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service or Software, or prepare derivative works therefrom; (e) combine, call, link to, or otherwise use the Hyland Cloud Service or Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Users; or (f) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.10 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.11 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
2.12 Development Sandbox. During the term of PaaS Schedule, Customer may purchase limited access to a Development Sandbox pursuant to an Order Form. Regardless of the deployment method of such Development Sandbox (whether on-prem or hosted by Hyland as part of the Hyland Cloud Service, as applicable), Customer acknowledges and agrees that (i) the PaaS Specification; (ii) the Hyland Cloud Services Support; and (iii) the PaaS Security Attachment shall not apply to such Development Sandbox. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Development Sandbox. If, at any time, Customer is not satisfied with the Development Sandbox, Customer’s sole and exclusive remedy shall be to stop using the Development Sandbox.
3. PRICES, INVOICES AND PAYMENT.
3.1 PaaS Fees. Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the PaaS Fees for the Hyland Cloud Service and Software for any renewal period by up to ten percent (10%) of the previous year’s PaaS Fees. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon either the execution of an Order Form or Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.2 Consumption Fees. To the extent applicable, Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.3 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.4 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Add-On Services, the Hyland Cloud Service and Software, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Add-On Service, the Hyland Cloud Service and Software, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service, Software, or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Software, Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service and Software, including assistance and advice related to the operation of the Hyland Cloud Service and Software.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service or Software which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service or Software to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service or Software, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error, which shall include, to the extent applicable, functioning test code that reproduces and isolates each issue. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service or Software, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will apply or make available all Upgrades and Enhancements, if and when released during the term of this PaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. To the extent applicable, Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Service from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service or Software.
5.2 EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or Software or from any error or defect in any configuration of any component of the Hyland Cloud Service or Software, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service or Software if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service or Software; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service or Software; (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); (6) in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule); or (7) for third party components that may be deployed along with the Hyland Cloud Services or Software or issues caused by third party software not licensed through Hyland or provided by Hyland. Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 TECHNICAL SUPPORT CONTACTS. Hyland will provide Hyland Cloud Service Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.4 PROFESSIONAL SERVICES. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY.
6.1 Information Security Program. During the term of this PaaS Schedule, Hyland shall maintain a security program which shall conform to the PaaS Security Attachment. Customer acknowledges and agrees that Hyland cannot control and is not responsible for information security outside of Hyland’s reasonable control, including without limitation transmission of data across the internet, third party network communications facilities or similar network providers. Furthermore, Customer acknowledges and agrees that the Hyland Cloud Services and Software rely upon certain key third party suppliers, and their information security obligations (and those of Hyland accordingly) are limited to that third party supplier’s information security program; provided, however, that Hyland will provide copies of such program terms where available, and Hyland remains responsible for configuring any such third party supplier’s tools and networks in accordance with the Hyland information security policies where such configuration is under Hyland’s reasonable control.
6.2 Virus and Malicious Code Detection. Hyland will have in place reasonable measures designed to detect Malicious Code and to help ensure the Hyland Cloud Service and Software will not transmit Malicious Code throughout the term of this PaaS Schedule. “Malicious Code” means viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs designed to permit unauthorized access to or intrusion upon, disabling or disruption of, erasure of or interference with the Hyland Cloud Service or Software, Customer’s hardware or data.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this PaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this PaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service or Software;
(b) Customer will comply with Hyland’s Acceptable Use Policy;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and Software and compliance with this PaaS Schedule, Documentation, the applicable PaaS Specification and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and Software and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service or Software, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and PaaS Software and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and Software and compliance with any terms and conditions under this PaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service and Software security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service and Software to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
(i) Customer will provide all reasonably necessary access, Customer contacts and other information and cooperation as necessary for Hyland to effectively provide the Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service and Software. Hyland shall have no responsibility or liability under this PaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service or Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service and Software Limited Warranty. Hyland warrants to Customer that during the term of this PaaS Schedule the Hyland Cloud Service and Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service or Software if: (i) any component of the Hyland Cloud Service or Software has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service or Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service and Software Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service or Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this PaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this PaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid PaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service or Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service and Software in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service or Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service or Software, or to replace the relevant portions with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this PaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid PaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (u) failure to use updates to the Hyland Cloud Service or Software provided by Hyland; (v) any Customer Data; (w) use of the Hyland Cloud Service or Software other than as expressly permitted by this PaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service, Software, or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service or Software, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE OR SOFTWARE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIABILITY CAP IN SECTION 6 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE TIMES FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT.
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TRANSITION PERIOD. Except in the case of termination due to Customer’s breach of the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service or Software pursuant to the terms of the Agreement for a period following the expiration or termination of the Agreement (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including PaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions set forth above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this PaaS Schedule.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil Ltda. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this PaaS Schedule available in other languages at this online location. This English language version of this PaaS Schedule controls over any version of the PaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this PaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the PaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda. Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda. this Exhibit A shall apply:
1. The PaaS Fees Section of this PaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the PaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for PaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
1. The last sentence of the No High Risk Use Section of the PaaS Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
2. The following provision shall be added to the Customer Limited Warranty Section of the PaaS Schedule:
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this PaaS Schedule is excluded.
3. Section 9.2 of the PaaS Schedule shall not apply.
4. Section 10.1 of the PaaS Schedule shall be replaced in its entirety as follows:
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE (3) TIMES THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Effective September 1st 2023 to October 4th 2023
DownloadTable of Contents
PLATFORM-AS-A-SERVICE SCHEDULE
As of the Effective Date, the Incorporating Document (as defined below), this Platform-as-a-Service Schedule (“PaaS Schedule”) is part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this PaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this PaaS Schedule. The parties acknowledge and agree that this PaaS Schedule applies to the Hyland Cloud Service (as defined herein) and Software provided on a platform-as-a-service basis; the Software-as-a-Service Schedule does not apply to the Hyland Cloud Service or Software as defined herein.
DEFINED TERMS.
All capitalized terms used in this PaaS Schedule shall have the meaning ascribed them in this PaaS Schedule or, if not defined in this PaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this PaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this PaaS Schedule, this PaaS Schedule shall be interpreted to include all definitions, as the context requires.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hyland Cloud Services.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the PaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Development Sandbox” means a set of environments ordered pursuant to an Order Form during the term for the applicable Hyland Cloud Service and used for testing with non-production data.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service and Software, or (b) if no such “Help Files” are included in the Hyland Cloud Service or Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service or Software.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Service” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, and Hosted 3rd Party Software made available on a platform-as-a-service basis, whether owned by Hyland or a third party, and as set forth on the applicable Order Form. For clarity, the Hyland Cloud Service does not include the Nuxeo Platform or Alfresco Community Version.
“Hyland Cloud Service Support” means the services described in this PaaS Schedule.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Services and for use applicable to Software or services purchased under the Agreement.
“Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. An Instance may also be referred to as a “Nuxeo Server” and may be illustrated as a “Nuxeo Server”, “Nuxeo Node” or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications solely as it relates to Nuxeo-branded Hyland Cloud Services as set forth on an Order Form.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“PaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service and Software. The initial PaaS Fees are set forth in either the Order Form.
“PaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#paas-security-attachment. The PaaS Security Attachment describes Hyland's current security processes and procedures for the products and services purchased under this PaaS Schedule. These processes and procedures may be updated from time to time, but will not be materially reduced.
“PaaS Specification” means the additional terms and descriptions of the applicable Hyland Cloud Services and associated delivery terms, which may include without limitation functionality, support, performance standards, information security and similar information. The PaaS Specification with respect to Alfresco means the Alfresco Cloud Services Specification located at https://www.alfresco.com/cloud/docs/alfresco-cloud-services-specification, and with respect to Nuxeo, the Nuxeo Cloud Services Specification provided separately. After the Effective Date, and subject to Section 1.3 of this PaaS Schedule, Hyland reserves the right to modify the applicable PaaS Specification from time to time. The modifications or the revised PaaS Specification will be effective thirty (30) days after Hyland provides written notice to Customer informing Customer of Hyland’s posting of such modifications or revisions on the website identified in such notice.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform Customer’s day-to-day operations.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service or Software issue or error.
“Service Limits” means the limitations set forth in an Order Form.
“Software” means Software as defined in the General Terms Schedule that is made available through the Hyland Cloud Service.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” or “Pre-Production Environment” means an environment of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Users” means Customer’s employees that access and use the Hyland Cloud Service and Software.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this PaaS Schedule Hyland will: (a) make the Hyland Cloud Service and Software available to Customer pursuant to this PaaS Schedule, the PaaS Security Attachment, Documentation and the applicable PaaS Specification; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.3 Changes to Hyland Cloud Services. Customer acknowledges that the Hyland Cloud Service is made available on a platform-as-a-service basis on the standard, general deployment model offered by Hyland. Hyland reserves the right to modify the Hyland Cloud Service and its delivery. Hyland will use reasonable efforts to notify Customer in advance of any changes that would materially impact Customer’s use or operation of the Hyland Cloud Service. However, Hyland agrees it will not modify the Hyland Cloud Service during the term of the PaaS Schedule in such a way as to materially reduce the functionality or performance of the applicable Hyland Cloud Service.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service and Software Access Grant. During the term of this PaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided herein), limited right to access the Hyland Cloud Service and Software as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. Use of the Hyland Cloud Service and Software is limited to the number of Instances, Users and/or Service Limits, as applicable, designated in the Order Form.
The Hyland Cloud Service and Software is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service or Software in any manner not expressly permitted by this PaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and Software and shall only access the Hyland Cloud Service and Software in a manner consistent with this PaaS Schedule, the PaaS Security Attachment, and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service or Software (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service and Software made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and Software and are not intended to be used on a stand-alone basis.
2.2 Nuxeo-Branded Hyland Cloud Services. If the Hyland Cloud Service(s) purchased by Customer includes Nuxeo as indicated on the Order Form, such Nuxeo-branded Hyland Cloud Services shall be subject to the additional terms set forth in this Section.
(a) Provision of Access. Subject to the terms and conditions contained in this Agreement, on or as soon as reasonably practicable after the Effective Date of this Agreement or as set forth in the applicable Order Form for the purchase of Nuxeo Hyland Cloud Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access such Hyland Cloud Services, which may include the following as set forth in the Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Hyland Cloud Services Support terms in this PaaS Schedule. Hyland will provide access to Nuxeo Studio in accordance with the applicable PaaS Specification.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Notwithstanding anything to the contrary, Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform as part of the Hyland Cloud Services is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and this Agreement does not impact any rights and obligations with respect to such Nuxeo Platform. During the term of the PaaS Schedule and as part of the Hyland Cloud Service, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Hyland Cloud Services Support provisions set forth in this PaaS Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Instances as part of the Hyland Cloud Services during the term of this PaaS Schedule. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
2.3 Volume Use Restriction. There are certain Software products or services that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Customer will notify Hyland promptly if it has exceeded the number of Instances, Service Limits and/or authorized Users indicated in the Order Form. Hyland will invoice Customer for the applicable fees after either the execution of a new Order Form or Hyland’s acceptance of Customer’s purchase order for such additional volume, and Customer will pay such fees in accordance with this Agreement. Customer will maintain accurate records necessary to verify the number of Instances it uses, Users it authorizes and Service Limits used. Upon Hyland’s written request, Customer will provide Hyland with such records within ten (10) business-days.
2.4 Test Environments. Customer may purchase limited access to Testing Environments. Hyland agrees that the security measures described in the PaaS Security Attachment are also applied to the Testing Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment. If, at any time, Customer is not satisfied with the Testing Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment.
2.5 No High Risk Use. The Hyland Cloud Service and Software are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service and Software are not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service or Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Hyland Cloud Service or Software is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service or Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s or its Contractors’ use of the Hyland Cloud Service or Software in connection with any High Risk Use.
2.6 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service and Software in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this PaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment. If such assessment uncovers underreported volume usage in accordance with this PaaS Schedule, Hyland will give Customer written notice of the noncompliance, including the number of underreported Instances, Service Limits and/or authorized Users, and a new or adjusted invoice to account for such increased volume. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported volume. If the assessment reveals that Customer underreported more than one of the Instances, and/or Service Limits, Customer shall pay Hyland for the reasonable costs incurred to perform the assessment.
2.7 Third Party Services and Content. The Hyland Cloud Service or Software may contain functionality which allows Customer to: (a) access, link, purchase, deploy or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided and licensed by third parties and (b) access third party websites and content. In the event Customer elects to utilize or deploy any such third party components, such components are provided and subject to the licensing and use terms provided by the applicable third party licensor, and Customer must procure all necessary license rights for Customer and Hyland to use and operate such components prior to their deployment. Hyland is only providing hosting services related to such third party components and has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users or Contractors with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service or Software. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service or Software. Hyland reserves the right to refuse to implement any incompatible third party services and content or third party components which create a material information security or operational risk. Hyland is not responsible for any delays or inability to perform the Hyland Cloud Service or Software to the extent caused by any third party services and content.
2.8 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.9 Prohibited Conduct. Customer agrees not to directly or indirectly: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service and Software; (b) sell, transfer, rent, lease sub-license, commercialize or otherwise transfer rights or usage to: (i) the Hyland Cloud Service; (ii) Software; or (iii) any modified version or derivative work of the Hyland Cloud Service or Software created by the Customer or for the Customer; ; (c) alter or modify the Hyland Cloud Service or Software; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service or Software, or prepare derivative works therefrom; (e) combine, call, link to, or otherwise use the Hyland Cloud Service or Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Users; or (f) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.10 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.11 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
2.12 Development Sandbox. During the term of PaaS Schedule, Customer may purchase limited access to a Development Sandbox pursuant to an Order Form. Regardless of the deployment method of such Development Sandbox (whether on-prem or hosted by Hyland as part of the Hyland Cloud Service, as applicable), Customer acknowledges and agrees that (i) the PaaS Specification; (ii) the Hyland Cloud Services Support; and (iii) the PaaS Security Attachment shall not apply to such Development Sandbox. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Development Sandbox. If, at any time, Customer is not satisfied with the Development Sandbox, Customer’s sole and exclusive remedy shall be to stop using the Development Sandbox.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice Customer for Initial Setup Fees, to the extent applicable, upon Hyland’s acceptance of the applicable initial order and subsequent orders for each purchase of Software for the Hyland Cloud Service, and such invoice shall be due and payable to Hyland in accordance with this Agreement.
3.2 PaaS Fees. Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the PaaS Fees for the Hyland Cloud Service and Software for any renewal period by up to ten percent (10%) of the previous year’s PaaS Fees. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon either the execution of an Order Form or Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. To the extent applicable, Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.5 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Add-On Services, the Hyland Cloud Service and Software, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Add-On Service, the Hyland Cloud Service and Software, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service, Software, or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Software, Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service and Software, including assistance and advice related to the operation of the Hyland Cloud Service and Software.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service or Software which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service or Software to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service or Software, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error, which shall include, to the extent applicable, functioning test code that reproduces and isolates each issue. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service or Software, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will apply or make available all Upgrades and Enhancements, if and when released during the term of this PaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. To the extent applicable, Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Service from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service or Software.
5.2 EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or Software or from any error or defect in any configuration of any component of the Hyland Cloud Service or Software, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service or Software if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service or Software; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service or Software; (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); (6) in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule); or (7) for third party components that may be deployed along with the Hyland Cloud Services or Software or issues caused by third party software not licensed through Hyland or provided by Hyland. Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 TECHNICAL SUPPORT CONTACTS. Hyland will provide Hyland Cloud Service Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.4 PROFESSIONAL SERVICES. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY.
6.1 Information Security Program. During the term of this PaaS Schedule, Hyland shall maintain a security program which shall conform to the PaaS Security Attachment. Customer acknowledges and agrees that Hyland cannot control and is not responsible for information security outside of Hyland’s reasonable control, including without limitation transmission of data across the internet, third party network communications facilities or similar network providers. Furthermore, Customer acknowledges and agrees that the Hyland Cloud Services and Software rely upon certain key third party suppliers, and their information security obligations (and those of Hyland accordingly) are limited to that third party supplier’s information security program; provided, however, that Hyland will provide copies of such program terms where available, and Hyland remains responsible for configuring any such third party supplier’s tools and networks in accordance with the Hyland information security policies where such configuration is under Hyland’s reasonable control.
6.2 Virus and Malicious Code Detection. Hyland will have in place reasonable measures designed to detect Malicious Code and to help ensure the Hyland Cloud Service and Software will not transmit Malicious Code throughout the term of this PaaS Schedule. “Malicious Code” means viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs designed to permit unauthorized access to or intrusion upon, disabling or disruption of, erasure of or interference with the Hyland Cloud Service or Software, Customer’s hardware or data.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this PaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this PaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service or Software;
(b) Customer will comply with Hyland’s Acceptable Use Policy;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and Software and compliance with this PaaS Schedule, Documentation, the applicable PaaS Specification and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and Software and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service or Software, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and PaaS Software and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and Software and compliance with any terms and conditions under this PaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service and Software security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service and Software to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
(i) Customer will provide all reasonably necessary access, Customer contacts and other information and cooperation as necessary for Hyland to effectively provide the Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service and Software. Hyland shall have no responsibility or liability under this PaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service or Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service and Software Limited Warranty. Hyland warrants to Customer that during the term of this PaaS Schedule the Hyland Cloud Service and Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service or Software if: (i) any component of the Hyland Cloud Service or Software has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service or Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service and Software Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service or Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this PaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this PaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid PaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service or Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service and Software in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service or Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service or Software, or to replace the relevant portions with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this PaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid PaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (u) failure to use updates to the Hyland Cloud Service or Software provided by Hyland; (v) any Customer Data; (w) use of the Hyland Cloud Service or Software other than as expressly permitted by this PaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service, Software, or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service or Software, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE OR SOFTWARE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6.2 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE TIMES FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT.
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term.Subject to the termination provisions set forth in the termination for breach section of the General Terms Schedule, the initial term of this PaaS Schedule will be the Initial Term; and such term will automatically renew thereafter for successive Renewal Terms, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case the Agreement shall terminate at the end of the then current term. “Renewal Term” shall be a period of one (1) year each unless a renewal Order Form defines a different Renewal Term for the applicable renewal period. This Schedule will not terminate unless and until all Software subscriptions purchased have terminated or expired.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of the Agreement will be in violation of any law or regulation implemented or modified after the Effective Date, Customer or Hyland, as the case may be, may terminate the applicable license or services under the Agreement, upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to the obligations set forth in the General Terms Schedule, immediately upon any termination or expiration of this PaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service, Software and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this PaaS Schedule or the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service or Software pursuant to the terms of this PaaS Schedule and the Agreement for a period following the expiration or termination of the PaaS Schedule (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including PaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions set forth above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this PaaS Schedule.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil Ltda. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
14. CONTROLLING LANGUAGE. Hyland may make other versions of this PaaS Schedule available in other languages at this online location. This English language version of this PaaS Schedule controls over any version of the PaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this PaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the PaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil Ltda. Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda. this Exhibit A shall apply:
1. The PaaS Fees Section of this PaaS Schedule shall be replaced in its entirety as follows:
Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the PaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for PaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
1. The last sentence of the No High Risk Use Section of the PaaS Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
2. The following provision shall be added to the Customer Limited Warranty Section of the PaaS Schedule:
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this PaaS Schedule is excluded.
3. Section 9.2 of the PaaS Schedule shall not apply.
4. Section 10.1 of the PaaS Schedule shall be replaced in its entirety as follows:
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE (3) TIMES THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Effective August 22nd 2023 to September 1st 2023
DownloadTable of Contents
PLATFORM-AS-A-SERVICE SCHEDULE
As of the Effective Date, the Incorporating Document (as defined below), this Platform-as-a-Service Schedule (“PaaS Schedule”) is part of the Hyland Master Agreement, Order Form or any other agreement or document entered into between Customer and Hyland, which incorporates this PaaS Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this PaaS Schedule. The parties acknowledge and agree that this PaaS Schedule applies to the Hyland Cloud Service (as defined herein) and Software provided on a platform-as-a-service basis; the Software-as-a-Service Schedule does not apply to the Hyland Cloud Service or Software as defined herein.
DEFINED TERMS.
All capitalized terms used in this PaaS Schedule shall have the meaning ascribed them in this PaaS Schedule or, if not defined in this PaaS Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this PaaS Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two (2) or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this PaaS Schedule, this PaaS Schedule shall be interpreted to include all definitions, as the context requires.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hyland Cloud Services.
“Alfresco Community Versions” means the free, open source community versions that Hyland makes available at no charge, including without limitation Digital Business Platform, Alfresco Content Services, Alfresco Process Services and Records Management software.
“Client Application” means an installation of Nuxeo Platform with specific configuration files that enable the performance of a task or related group of tasks.
“Consumption Fees” means the amounts payable by Customer for storage of data and information in the Hyland Cloud Service in excess of the data storage allocation set forth in the Order Form for the Hyland Cloud Service.
“Customer Data” means any and all electronic data and information submitted by Customer or Users to the Hyland Cloud Service.
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the PaaS Security Attachment. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).
“Development Sandbox” means a set of environments ordered pursuant to an Order Form during the term for the applicable Hyland Cloud Service and used for testing with non-production data.
“Documentation” means: (a) to the extent available, the “Help Files” included in the Hyland Cloud Service and Software, or (b) if no such “Help Files” are included in the Hyland Cloud Service or Software, such other documentation published by Hyland, in each case, which relate to the functional, operational or performance characteristics of the Hyland Cloud Service or Software.
“Hosted 3rd Party Software” means all third party software products (other than third party software products bundled by Hyland as a part of the Software) provided by Hyland as part of the Hyland Cloud Service, along with the associated documentation.
“Hyland Cloud Service” means the Physical Infrastructure and any composite software layers such as databases, operating systems, virtualization technology, and Hosted 3rd Party Software made available on a platform-as-a-service basis, whether owned by Hyland or a third party, and as set forth on the applicable Order Form. For clarity, the Hyland Cloud Service does not include the Nuxeo Platform or Alfresco Community Version.
“Hyland Cloud Service Support” means the services described in this PaaS Schedule.
“Initial Setup Fee” means the one-time fee invoiced by Hyland to Customer and payable by Customer to Hyland for the setup and activation of the Hyland Cloud Services and for use applicable to Software or services purchased under the Agreement.
“Instance” means the equivalent to a Java Virtual Machine (JVM) running the Nuxeo Platform. An Instance may also be referred to as a “Nuxeo Server” and may be illustrated as a “Nuxeo Server”, “Nuxeo Node” or equivalent in an architecture diagram.
“Nuxeo Marketplace” means the marketplace that makes connectors, integrations, extensions, plug-ins, packages and other optional components that provide additional configurable features for use in development and operation of Client Applications.
“Nuxeo Platform” means the platform that supports design, testing, integration, execution and maintenance of Client Applications solely as it relates to Nuxeo-branded Hyland Cloud Services as set forth on an Order Form.
“Nuxeo Studio” means the tool used to configure Client Applications on the Nuxeo Platform, and if purchased pursuant to an Order Form, includes Studio Branch Management and/or Studio Projects.
“PaaS Fees” means the amounts invoiced by Hyland and payable by Customer to Hyland for the use of the Hyland Cloud Service and Software. The initial PaaS Fees are set forth in either the Order Form.
“PaaS Security Attachment” means the document available at https://legal.hyland.com/Customer-Legal-Center#paas-security-attachment. The PaaS Security Attachment describes Hyland's current security processes and procedures for the products and services purchased under this PaaS Schedule. These processes and procedures may be updated from time to time, but will not be materially reduced.
“PaaS Specification” means the additional terms and descriptions of the applicable Hyland Cloud Services and associated delivery terms, which may include without limitation functionality, support, performance standards, information security and similar information. The PaaS Specification with respect to Alfresco means the Alfresco Cloud Services Specification located at https://www.alfresco.com/cloud/docs/alfresco-cloud-services-specification, and with respect to Nuxeo, the Nuxeo Cloud Services Specification provided separately.
“Physical Infrastructure” means the physical hardware and infrastructure which Hyland uses to provide the Hyland Cloud Service (which may include servers, network devices, cabling, CPU, data centers, memory, storage, switches, firewalls, routers and other network devices) whether owned by Hyland or a third party services provider.
“Production Environment” means the environment containing final production data, hardware, and software needed to perform Customer’s day-to-day operations.
“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Hyland Cloud Service or Software issue or error.
“Service Limits” means the limitations set forth in an Order Form.
“Software” means Software as defined in the General Terms Schedule that is made available through the Hyland Cloud Service.
“Studio Branch Management” means an advanced feature of Nuxeo Studio that enables the Nuxeo Studio user to create, manage and delete development branches without impacting the master branch.
“Studio Project” means a workspace in Nuxeo Studio to configure one (1) Client Application.
“Support Prioritization Attachment” is the document available at https://legal.hyland.com/Customer-Legal-Center#maintenance-and-support-prioritization-attachment.
“Testing Environment” or “Pre-Production Environment” means an environment of the Hyland Cloud Service (including Customer Data) hosted by Hyland, for use by Customer solely with production data in a non-production environment for the limited purpose of functional and performance testing of the Software and environment, Hosted 3rd Party Software and each Work Product included in the Hyland Cloud Service.
“Users” means Customer’s employees that access and use the Hyland Cloud Service and Software.
1. HYLAND CLOUD SERVICE.
1.1 General. During the term of this PaaS Schedule Hyland will: (a) make the Hyland Cloud Service and Software available to Customer pursuant to this PaaS Schedule, the PaaS Security Attachment, Documentation and the applicable PaaS Specification; and (b) only use Customer Data to provide, develop, and improve the Hyland Cloud Service and other services, to prevent or address service or technical problems, or in accordance with Customer’s instructions.
1.3 Changes to Hyland Cloud Services. Customer acknowledges that the Hyland Cloud Service is made available on a platform-as-a-service basis on the standard, general deployment model offered by Hyland. Hyland reserves the right to modify the Hyland Cloud Service and its delivery. Hyland will use reasonable efforts to notify Customer in advance of any changes that would materially impact Customer’s use or operation of the Hyland Cloud Service. However, Hyland agrees it will not modify the Hyland Cloud Service during the term of the PaaS Schedule in such a way as to materially reduce the functionality or performance of the applicable Hyland Cloud Service.
2. GRANT OF RIGHTS AND PROHIBITED CONDUCT.
2.1 Hyland Cloud Service and Software Access Grant. During the term of this PaaS Schedule, Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided herein), limited right to access the Hyland Cloud Service and Software as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data. Use of the Hyland Cloud Service and Software is limited to the number of Instances, Users and/or Service Limits, as applicable, designated in the Order Form.
The Hyland Cloud Service and Software is for use by Customer and its Users and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer and its Users shall not make any use of the Hyland Cloud Service or Software in any manner not expressly permitted by this PaaS Schedule. Customer acknowledges that it and its Users may only access Customer Data via the Hyland Cloud Service and Software and shall only access the Hyland Cloud Service and Software in a manner consistent with this PaaS Schedule, the PaaS Security Attachment, and the Documentation. Use of software or hardware that reduces the number of users directly accessing or utilizing the Hyland Cloud Service or Software (e.g. by using “bots” or “multiplexing” or “pooling” software or hardware) does not reduce the number of users accessing the Hyland Cloud Services for purposes of calculating the number of users, as the required number of users would equal the number of distinct inputs to such software or hardware (e.g. to such “bots” or “multiplexing” or “pooling” software or hardware). Customer is prohibited from using any software (including bots) other than the Software or a Software application programming interface (API) to access the Hyland Cloud Service or any data stored in the Software database for any purpose other than generating reports or statistics regarding system utilization, unless Hyland has given its prior written consent to Customer’s use of such other software and Customer has paid to Hyland the required fees with respect to such access. Customer further acknowledges that all components of the Hyland Cloud Service and Software made available by Hyland, including any components downloaded or installed locally on Customer’s or Users’ systems, are solely for use with the Hyland Cloud Service and Software and are not intended to be used on a stand-alone basis.
2.2 Nuxeo-Branded Hyland Cloud Services. If the Hyland Cloud Service(s) purchased by Customer includes Nuxeo as indicated on the Order Form, such Nuxeo-branded Hyland Cloud Services shall be subject to the additional terms set forth in this Section.
(a) Provision of Access. Subject to the terms and conditions contained in this Agreement, on or as soon as reasonably practicable after the Effective Date of this Agreement or as set forth in the applicable Order Form for the purchase of Nuxeo Hyland Cloud Services, Hyland shall provide to Customer the necessary Access Protocols to allow Customer to access such Hyland Cloud Services, which may include the following as set forth in the Order Form:
(i) Nuxeo Studio. Hyland will provide Customer with access to Nuxeo Studio, which is a cloud portal application and includes Hyland’s continuous maintenance of Nuxeo Studio, and Hyland’s provision of technical support according to the Hyland Cloud Services Support terms in this PaaS Schedule. Hyland will provide access to Nuxeo Studio in accordance with the applicable PaaS Specification.
(ii) Nuxeo Platform Incremental Maintenance Releases and Technical Support. Notwithstanding anything to the contrary, Customer expressly acknowledges and agrees that Customer’s use of the Nuxeo Platform as part of the Hyland Cloud Services is solely governed by the Apache 2.0 open source license provided with the Nuxeo Platform and this Agreement does not impact any rights and obligations with respect to such Nuxeo Platform. During the term of the PaaS Schedule and as part of the Hyland Cloud Service, Hyland will provide to Customer Nuxeo Platform maintenance releases, when and if released, and Nuxeo Platform technical support according to the Hyland Cloud Services Support provisions set forth in this PaaS Schedule. Maintenance release source code may be made available to Customer upon request. Maintenance releases, including any source code and generated object code may only be used and deployed on approved Instances as part of the Hyland Cloud Services during the term of this PaaS Schedule. Maintenance releases are not subject to the Nuxeo Platform license terms until such time as they are made generally available and released as part of the Nuxeo Platform.
(b) Nuxeo Marketplace. Hyland will provide Customer with access to the Nuxeo Marketplace where Customer can access additional connectors, integrations, extensions, plug-ins, packages and other optional components. For the avoidance of doubt, some of the items available for access on the Nuxeo Marketplace may carry additional cost and terms.
2.3 Volume Use Restriction. There are certain Software products or services that Hyland makes available and which Customer may purchase for use as part of the Hyland Cloud Service that are volume-based and may: (a) no longer function if applicable volume limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s volume usage; or (c) include functionality which monitors or tracks Customer usage and reports that usage. Customer may not circumvent or attempt to circumvent this restriction by any means, including but not limited to changing the computer calendars. Customer will notify Hyland promptly if it has exceeded the number of Instances, Service Limits and/or authorized Users indicated in the Order Form. Hyland will invoice Customer for the applicable fees after either the execution of a new Order Form or Hyland’s acceptance of Customer’s purchase order for such additional volume, and Customer will pay such fees in accordance with this Agreement. Customer will maintain accurate records necessary to verify the number of Instances it uses, Users it authorizes and Service Limits used. Upon Hyland’s written request, Customer will provide Hyland with such records within ten (10) business-days.
2.4 Test Environments. Customer may purchase limited access to Testing Environments. Hyland agrees that the security measures described in the PaaS Security Attachment are also applied to the Testing Environment. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Testing Environment. If, at any time, Customer is not satisfied with the Testing Environment, Customer’s sole and exclusive remedy shall be to stop using the Testing Environment.
2.5 No High Risk Use. The Hyland Cloud Service and Software are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. The Hyland Cloud Service and Software are not designed or intended for use in any situation where failure or fault of any kind of the Hyland Cloud Service or Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). The Hyland Cloud Service or Software is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Hyland Cloud Service or Software for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s or its Contractors’ use of the Hyland Cloud Service or Software in connection with any High Risk Use.
2.6 Assessment. Hyland shall be permitted access to assess Customer’s use of the Hyland Cloud Service and Software in order to determine Customer’s compliance with the grant of use and pricing terms of the Agreement and this PaaS Schedule, including, where applicable, to measure Customer’s volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such assessment. If such assessment uncovers underreported volume usage in accordance with this PaaS Schedule, Hyland will give Customer written notice of the noncompliance, including the number of underreported Instances, Service Limits and/or authorized Users, and a new or adjusted invoice to account for such increased volume. Customer shall have fifteen (15) days from the date of the applicable invoice to make payment to Hyland for the underreported volume. If the assessment reveals that Customer underreported more than one of the Instances, and/or Service Limits, Customer shall pay Hyland for the reasonable costs incurred to perform the assessment.
2.7 Third Party Services and Content. The Hyland Cloud Service or Software may contain functionality which allows Customer to: (a) access, link, purchase, deploy or integrate the Hyland Cloud Service with Customer’s applications or applications or services provided and licensed by third parties and (b) access third party websites and content. In the event Customer elects to utilize or deploy any such third party components, such components are provided and subject to the licensing and use terms provided by the applicable third party licensor, and Customer must procure all necessary license rights for Customer and Hyland to use and operate such components prior to their deployment. Hyland is only providing hosting services related to such third party components and has no responsibility for such applications or services, websites or content and shall have no responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access or use by such applications or services. Any activities engaged in by Customer or any of its Users or Contractors with such third parties using the Hyland Cloud Service is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites, applications or services that may be linked or integrated through the Hyland Cloud Service or Software. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or its Users using the Hyland Cloud Service or Software. Hyland reserves the right to refuse to implement any incompatible third party services and content or third party components which create a material information security or operational risk. Hyland is not responsible for any delays or inability to perform the Hyland Cloud Service or Software to the extent caused by any third party services and content.
2.8 Acceptable Use Policy. Customer agrees to comply with the Acceptable Use Policy, available at https://legal.hyland.com/Customer-Legal-Center#acceptable-use-policy-attachment. Customer acknowledges that a violation of the Acceptable Use Policy shall be considered a Prohibited Act.
2.9 Prohibited Conduct. Customer agrees not to directly or indirectly: (a) remove copyright, trademark or other proprietary rights notices that appear during the use of the Hyland Cloud Service and Software; (b) sell, transfer, rent, lease sub-license, commercialize or otherwise transfer rights or usage to: (i) the Hyland Cloud Service; (ii) Software; or (iii) any modified version or derivative work of the Hyland Cloud Service or Software created by the Customer or for the Customer; ; (c) alter or modify the Hyland Cloud Service or Software; (d) reverse engineer, disassemble, decompile or attempt to derive source code from the Hyland Cloud Service or Software, or prepare derivative works therefrom; (e) combine, call, link to, or otherwise use the Hyland Cloud Service or Software in conjunction with any Alfresco Community Version, or use any of the services for Alfresco Community Versions or for any unlicensed Users; or (f) use the Hyland Cloud Service or permit it to be used in violation of the Acceptable Use Policy or for the purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without Hyland’s prior written consent.
2.10 Ownership of Customer Data. As between Hyland and Customer, Customer owns Customer Data.
2.11 Customer Input and Suggestions. Hyland shall have a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to use or incorporate into any of Hyland’s products or services, including the Hyland Cloud Services, any suggestions, enhancements, improvements, recommendations or any other feedback provided by Customer or its users, related to the operation or use of the Hyland Cloud Service.
2.12 Development Sandbox. During the term of PaaS Schedule, Customer may purchase limited access to a Development Sandbox pursuant to an Order Form. Regardless of the deployment method of such Development Sandbox (whether on-prem or hosted by Hyland as part of the Hyland Cloud Service, as applicable), Customer acknowledges and agrees that (i) the PaaS Specification; (ii) the Hyland Cloud Services Support; and (iii) the PaaS Security Attachment shall not apply to such Development Sandbox. Hyland reserves the right to further define the permitted use(s) and/or restrict the use(s) of the Development Sandbox. If, at any time, Customer is not satisfied with the Development Sandbox, Customer’s sole and exclusive remedy shall be to stop using the Development Sandbox.
3. PRICES, INVOICES AND PAYMENT.
3.1 Initial Setup Fees. Hyland will invoice Customer for Initial Setup Fees, to the extent applicable, upon Hyland’s acceptance of the applicable initial order and subsequent orders for each purchase of Software for the Hyland Cloud Service, and such invoice shall be due and payable to Hyland in accordance with this Agreement.
3.2 PaaS Fees. Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software as initially composed in accordance with the initial Order Form. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. Following expiration of the Initial Term, Hyland may increase the PaaS Fees for the Hyland Cloud Service and Software for any renewal period by up to ten percent (10%) of the previous year’s PaaS Fees. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon either the execution of an Order Form or Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
3.3 Consumption Fees. To the extent applicable, Hyland will invoice for any Consumption Fees, monthly in arrears, promptly upon the end of the month to which such Consumption Fees relate. Consumption Fees will be due for a month if at any time during such month the amount of Customer Data stored in the Hyland Cloud Service exceeds Customer’s then-current data storage allocation.
3.4 Add-On Services. If Customer subscribes to an Add-On Service, the fees for such Add-On Service will be invoiced on a periodic basis, in advance, and Customer shall pay such invoices in accordance with the General Terms Schedule unless otherwise stated on an Order Form. Some Add-On Services may be priced on a volume basis, for which Add-On Service fees may be invoiced in arrears based on the applicable volume usage. Add-On Services may be subject to additional terms.
3.5 Other Fees. If, upon mutual agreement of the parties, Hyland provides any other services or deliverables that are not covered by the fees and charges described herein, Hyland will invoice for such other fees or charges based upon Hyland’s then current list prices or the pricing that the parties have mutually agreed upon in connection with such other services or deliverables.
4. U.S. GOVERNMENT END USERS. To the extent applicable to Customer, the terms and conditions of the Agreement shall pertain to the U.S. Government’s use and/or disclosure of the Add-On Services, the Hyland Cloud Service and Software, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of the Agreement and/or the delivery of the Add-On Service, the Hyland Cloud Service and Software, the U.S. Government hereby agrees that the Software, including the Hosted 3rd Party Software included in the Hyland Cloud Service and Add-On Services qualify as “commercial” computer software within the meaning of ALL U.S. federal acquisition regulation(s) applicable to this procurement and that the Software and Add-On Services are developed exclusively at private expense. If this license fails to meet the U.S. Government’s needs or is inconsistent in any respect with Federal law, the U.S. Government agrees to return this Hyland Cloud Service, Software, or Add-On Services to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Hyland Cloud Service, Software, Add-On Services, or Documentation by the U.S. Government is subject solely to the terms of the Agreement, as stated in DFARS 227.7202, and the terms of the Agreement shall supersede any conflicting contractual term or conditions.
5. HYLAND CLOUD SERVICE SUPPORT.
5.1 HYLAND CLOUD SERVICE SUPPORT TERMS. Hyland will provide Hyland Cloud Service Support in accordance with this Section and the Support Prioritization Attachment.
(a) Technical Support Services. Hyland will provide telephone or online technical support related to problems reported by Customer and associated with the operation of the Hyland Cloud Service and Software, including assistance and advice related to the operation of the Hyland Cloud Service and Software.
(b) Error Correction Services. With respect to any issues or errors in the Hyland Cloud Service or Software which are reported by Customer and which are confirmed by Hyland, Hyland will use its reasonable efforts to correct such issue or error, which may be effected by a reasonable workaround. Hyland shall promptly commence to confirm any reported issues or errors after receipt of a proper report of such suspected issue or error from Customer in accordance with the Support Prioritization Attachment. Hyland may elect to correct the issue or error by updating or upgrading the applicable component of the Hyland Cloud Service or Software to a new build or version.
(c) Reporting Policies and Procedures Applicable to Technical Support Services and Error Correction Services.
(2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment.
(d) Software Upgrades and Enhancements. Hyland will apply or make available all Upgrades and Enhancements, if and when released during the term of this PaaS Schedule.
(e) Update, Upgrade, Change or Replacement of Components of the Hyland Cloud Service. To the extent applicable, Hyland may update or upgrade the build or version of the Software used in the Hyland Cloud Service from time to time at Hyland’s expense. Hyland also may change, replace, update or upgrade the Hyland Cloud Service from time to time. Customer agrees to collaborate with Hyland and assist Hyland in connection with the completion of installation and testing of any update or upgrade related to the Hyland Cloud Service or Software.
5.2 EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Hyland Cloud Service Support: (1) in connection with any errors, defects or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Hyland Cloud Service or Software or from any error or defect in any configuration of any component of the Hyland Cloud Service or Software, which activities in any such case were undertaken by any party other than Hyland or a party retained by Hyland; (2) in connection with any error or defect or problem in any other component of the Hyland Cloud Service or Software if Hyland has previously made available corrections for such error or defect which Customer fails to implement; (3) in connection with any errors, defects or problems which have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in any software, hardware or system or networking which is not a part of the Hyland Cloud Service or Software; (4) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Hyland Cloud Service Support to Customer with respect to the Hyland Cloud Service or Software; (5) in connection with any questions related to the operation or use of the Software application programming interfaces (APIs); (6) in connection with any errors, defects or problems with Work Products (as defined in the Professional Services Schedule); or (7) for third party components that may be deployed along with the Hyland Cloud Services or Software or issues caused by third party software not licensed through Hyland or provided by Hyland. Support relating to Work Products and the operation or use of APIs may be provided, on a case-by-case basis, as mutually agreed to in an applicable Services Proposal which outlines Professional Services for such support activities.
5.3 TECHNICAL SUPPORT CONTACTS. Hyland will provide Hyland Cloud Service Support to the designated contacts, as identified by Customer (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills, and relevant technical knowledge. Customer may modify its designated Technical Support Contacts at any time during the term of this Schedule by notifying Hyland in writing and giving Hyland five (5) business days to process the change. Technical Support Contacts will be the only interface to the Hyland customer support center. Hyland recommends that the Technical Support Contacts obtain the applicable Software certification by attending Hyland training courses. In an emergency, a Hyland customer support engineer will respond to an issue for an unauthorized contact on an exception basis, subject to later verification and involvement of a named Technical Support Contact.
5.4 PROFESSIONAL SERVICES. Customer agrees that the Professional Services Terms, available at https://legal.hyland.com/Customer-Legal-Center#professional-services-schedule shall apply to all Professional Services (as that term is defined in the Professional Services Terms) provided by Hyland for Customer.
6. SECURITY.
6.1 Information Security Program. During the term of this PaaS Schedule, Hyland shall maintain a security program which shall conform to the PaaS Security Attachment. Customer acknowledges and agrees that Hyland cannot control and is not responsible for information security outside of Hyland’s reasonable control, including without limitation transmission of data across the internet, third party network communications facilities or similar network providers. Furthermore, Customer acknowledges and agrees that the Hyland Cloud Services and Software rely upon certain key third party suppliers, and their information security obligations (and those of Hyland accordingly) are limited to that third party supplier’s information security program; provided, however, that Hyland will provide copies of such program terms where available, and Hyland remains responsible for configuring any such third party supplier’s tools and networks in accordance with the Hyland information security policies where such configuration is under Hyland’s reasonable control.
6.2 Virus and Malicious Code Detection. Hyland will have in place reasonable measures designed to detect Malicious Code and to help ensure the Hyland Cloud Service and Software will not transmit Malicious Code throughout the term of this PaaS Schedule. “Malicious Code” means viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs designed to permit unauthorized access to or intrusion upon, disabling or disruption of, erasure of or interference with the Hyland Cloud Service or Software, Customer’s hardware or data.
7. CERTAIN RESPONSIBILITIES AND OBLIGATIONS OF CUSTOMER.
7.1 Customer Responsibilities. In connection with the relationship established between Customer and Hyland under this PaaS Schedule:
(a) except as otherwise expressly permitted under the terms of this PaaS Schedule, Customer will not permit or authorize any third parties (such as persons or legal entities) to use the Hyland Cloud Service or Software;
(b) Customer will comply with Hyland’s Acceptable Use Policy;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and Software and compliance with this PaaS Schedule, Documentation, the applicable PaaS Specification and the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and Software and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service or Software, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and PaaS Software and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and Software and compliance with any terms and conditions under this PaaS Schedule and the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service and Software security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service and Software to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
(h) Customer may give any of its Users the rights to act as a system administrator, through the configuration tools included in the Software for the Hyland Cloud Service. Hyland has no responsibility or obligations in connection with Customer’s internal management or administration of Customer’s Hyland Cloud Service.
(i) Customer will provide all reasonably necessary access, Customer contacts and other information and cooperation as necessary for Hyland to effectively provide the Hyland Cloud Service.
7.2 Customer Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use the Hyland Cloud Service and Software. Hyland shall have no responsibility or liability under this PaaS Schedule for any unavailability or failure of, or nonconformity or defect in, the Hyland Cloud Service or Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment and relationships.
8. LIMITED WARRANTIES.
8.1 Hyland Cloud Service and Software Limited Warranty. Hyland warrants to Customer that during the term of this PaaS Schedule the Hyland Cloud Service and Software will function in all material respects as described in the Documentation. The terms of this warranty shall not apply to, and Hyland shall have no liability for any non-conformity related to, the Hyland Cloud Service or Software if: (i) any component of the Hyland Cloud Service or Software has been modified, misused or abused by Customer or a third party, (ii) any such non-conformity arises from or is related to problems within or impacting Customer’s computing environment, including any Customer third party software applications, hardware, network or internet connectivity, or (iii) if the Hyland Cloud Service or Software is used in combination with equipment or software other than that which is provided by Hyland or is consistent with the Documentation.
8.2 Hyland Cloud Service and Software Warranty Remedy. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties under Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of the Hyland Cloud Service or Software, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practicable, then terminate this PaaS Schedule with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this PaaS Schedule, Hyland will provide a refund to Customer of the “unused portion of prepaid PaaS Fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the non-conforming portion of the Hyland Cloud Service or Software for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
8.3 Customer Limited Warranty. Customer represents and warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use the Hyland Cloud Service and Software in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland via electronic media will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with the Hyland Cloud Service or Professional Services has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and that submission of Customer Data does not violate any contracts, agreements, or any applicable law. Customer is responsible for all Customer Data that is submitted to Hyland for use in connection with the Hyland Cloud Service or Professional Services.
9. INFRINGEMENT INDEMNIFICATION.
9.1 Generally. Hyland agrees to indemnify Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Hyland Cloud Service or Software of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of the Customer or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Hyland Cloud Service or Software, or to replace the relevant portions with other equivalent, non-infringing portions. If Hyland is unable to accomplish either of the options set forth in the preceding sentence, Hyland shall terminate this PaaS Schedule upon thirty (30) days advance written notice to Customer and refund to Customer the “unused portion of prepaid PaaS Fees” as defined below paid during the then current term (or applicable twelve-month period within the Initial Term). For these purposes, the “unused portion of prepaid PaaS Fees” shall mean an amount equal to the total PaaS Fees paid by Customer for the term (or applicable twelve-month period within the Initial Term) during which termination occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such termination occurs, and the denominator or which shall be twelve (12). Notwithstanding anything to the contrary, Hyland shall have no obligation to indemnify Customer against any claims made against Customer and otherwise described in this Section that arise from: (u) failure to use updates to the Hyland Cloud Service or Software provided by Hyland; (v) any Customer Data; (w) use of the Hyland Cloud Service or Software other than as expressly permitted by this PaaS Schedule and the Agreement; (x) the combination of the Hyland Cloud Service, Software, or any component thereof with any product not furnished by Hyland; (y) the modification or addition of any component of the Hyland Cloud Service or Software, other than by Hyland or any of its authorized resellers specifically retained by Hyland to provide such modification or addition; or (z) the Customer’s business methods or processes.
9.2 THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE HYLAND CLOUD SERVICE OR SOFTWARE.
10. LIABILITY FOR CUSTOMER DATA INCIDENTS.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF SECTION 6.2 OF THE GENERAL TERMS SCHEDULE: THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE TIMES FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT.
10.2 Notwithstanding Section 6.1 of the General Terms Schedule, and subject to Section 10.1 of this Schedule, in the event of a Customer Data Incident, Hyland shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) providing notification of the Customer Data Incident to applicable government and relevant industry self-regulatory agencies, to the media and to individuals whose personal data may have been accessed or acquired, where required by law; and (b) providing credit monitoring service (where such service addresses the harm caused by the Customer Data Incident) to individuals who elect to receive such credit monitoring service and whose personal data may have been accessed or acquired, for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition.
11. TERM; TERMINATION.
11.1 Term.Subject to the termination provisions set forth in the termination for breach section of the General Terms Schedule, the initial term of this PaaS Schedule will be the Initial Term; and such term will automatically renew thereafter for successive Renewal Terms, unless and until either party provides at least thirty (30) days advance written notice of non-renewal, in which case the Agreement shall terminate at the end of the then current term. “Renewal Term” shall be a period of one (1) year each unless a renewal Order Form defines a different Renewal Term for the applicable renewal period. This Schedule will not terminate unless and until all Software subscriptions purchased have terminated or expired.
11.1.1 If, in the reasonable opinion of Customer or Hyland, the compliance by either party with the terms of the Agreement will be in violation of any law or regulation implemented or modified after the Effective Date, Customer or Hyland, as the case may be, may terminate the applicable license or services under the Agreement, upon thirty (30) days written notice to the other party.
11.2 Additional Effects or Consequences of Termination. In addition to the obligations set forth in the General Terms Schedule, immediately upon any termination or expiration of this PaaS Schedule, Customer shall cease any and all uses of or access to the Hyland Cloud Service, Software and Documentation.
11.3 Transition Period Upon Termination. Except in the case of termination by Hyland due to Customer’s breach of this PaaS Schedule or the Agreement, upon Customer’s request, Hyland will use good faith efforts to enter into an amendment or Services Proposal pursuant to which Customer may continue to access the Hyland Cloud Service or Software pursuant to the terms of this PaaS Schedule and the Agreement for a period following the expiration or termination of the PaaS Schedule (the “Transition Period”). Any such amendment or Services Proposal shall be subject to Customer’s payment of mutually agreed upon fees, including PaaS Fees, Consumption Fees and any fees for Professional Services related to such Transition Period.
12. COMPLIANCE WITH LAWS. Subject to the Term and Termination provisions set forth above, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under this PaaS Schedule.
13. ADDITIONAL TERMS AND CONDITIONS. If Hyland is a Hyland company set forth below, the additional or alternative terms and conditions set forth on the applicable Additional Terms Exhibit shall apply:
Hyland Company Additional Terms Exhibit
Hyland Software Brasil Ltda. Exhibit A
Hyland Software Germany GmbH Exhibit B
14. CONTROLLING LANGUAGE. Hyland may make other versions of this PaaS Schedule available in other languages at this online location. This English language version of this PaaS Schedule controls over any version of the PaaS Schedule made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but this PaaS Schedule is not made available at this online location in the Other Language, this English language version controls over any other version of the PaaS Schedule that may be made available at this online location in another language.
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil Ltda. this Exhibit A shall apply:
Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service and Software in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay PaaS Fees to Hyland for the Hyland Cloud Service as initially composed in accordance with the initial Order Form. Hyland will adjust the PaaS Fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for PaaS Fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor Amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for PaaS Fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for PaaS Fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds Software for the Hyland Cloud Service, Hyland will invoice Customer for PaaS Fees for such additional Software on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software. Thereafter, PaaS Fees relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
1. The last sentence of the No High Risk Use Section of the PaaS Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's culpable breach of this Section with regard to the use of the Software and/or Hyland Cloud Service in connection with any High Risk Use.
2. The following provision shall be added to the Customer Limited Warranty Section of the PaaS Schedule:
Any statutory rights of the Customer regarding any damages resulting from the breach of the above Software warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this PaaS Schedule is excluded.
3. Section 9.2 of the PaaS Schedule shall not apply.
4. Section 10.1 of the PaaS Schedule shall be replaced in its entirety as follows:
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE CASE OF A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), THE FOLLOWING SHALL APPLY IN LIEU OF THE LIMITATION OF LIABLITY IN THE GENERAL TERMS SCHEDULE (EXCEPT WHERE HYLAND'S LIABILITY IS UNLIMITED PURSUANT TO THE GENERAL TERMS SCHEDULE): THE MAXIMUM LIABILITY OF HYLAND (INCLUDING ITS AFFILIATES AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER IT FOR A CUSTOMER DATA INCIDENT (AS DEFINED IN THIS SCHEDULE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THREE (3) TIMES THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER DATA INCIDENT MULTIPLIED BY THE NUMBER INDICATED IN THE TABLE BELOW BASED ON CUSTOMER’S SERVICE CLASS AT THE TIME OF THE CUSTOMER DATA INCIDENT.
The most current version of this page shall be such in effect as of 12:00am EST of the date stamped on such online version.
Nuxeo Cloud Services Specification
Software Maintenance and Support Terms
Effective September 19th 2023
DownloadTable of Contents
SOFTWARE MAINTENANCE AND SUPPORT TERMS
These Software Maintenance and Support Terms (the “Terms”) govern the provision of Maintenance and Support (as defined hereinbelow) by Hyland Software, Inc. or its affiliates (“Hyland”), to the customer named on the quote, invoice, or other document within which these Terms are referenced or linked (“Customer”).
All capitalized terms used in this these Terms shall have the meaning ascribed them herein.
1. DEFINED TERMS.
“Documentation” means (1) to the extent available, the “Help Files” included in the Software, or (2) if no such “Help Files” are included in the Software, such other documentation published by Hyland which relate to the functional, operational or performance characteristics of the Software.
“Error” means any defect or condition inherent in the Software which is reported by Customer in accordance with these Terms and which is confirmed by Hyland, that causes the Software to fail to function in any material respect as described in the Documentation.
“Maintenance and Support” means the services described in Section 3 of these Terms with respect to Software.
“Retired Software” means, at any particular time during a maintenance period covered by these Terms, (i) any Software product or version of the Software licensed by Customer from Hyland which is identified as being retired on Hyland’s applicable secure end user web site; and (ii) any version of the Software other than the then-current version and the immediately preceding version.
“Software” means (a) Hyland’s proprietary software products for which Maintenance and Support is being purchased by Customer; and (b) all Upgrades and Enhancements of the software products described in clause (a) which Customer properly obtains pursuant to these Terms; Software does not include Alfresco Community Versions.
“Technical Contact” means a primary contact person designated by Customer who has read, comprehends, and follows the operating instructions of the Software prior to requesting Maintenance and Support, and who has full access and authority if Hyland requires Customer’s assistance to research or duplicate a reported issue. Customer may change the Technical Contact at any time upon written notice to Hyland.
“Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during the term of these Terms to correct Errors or deficiencies or enhance the capabilities of the Software, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions, where applicable; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
“Work Products” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by Hyland, working either alone or in conjunction with others, in the performance of professional services for Customer or the delivery of Software to Customer.
2. FEES; EXPENSE REIMBURSEMENTS; TAXES; PAYMENT TERMS.
2.1 MAINTENANCE PERIODS; ANNUAL MAINTENANCE FEES; PAYMENT TERMS. Maintenance and Support is provided on an annual basis and invoiced in advance, subject to mutual agreement of the parties. Mutual agreement may be evidenced by Hyland’s invoicing of annual maintenance fees and Customer’s payment of such annual maintenance fees. Notwithstanding anything to the contrary, Maintenance and Support shall immediately terminate at the time any Software becomes Retired Software.
2.2 TAXES AND GOVERNMENTAL CHARGES. All payments under these Terms are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.3 INVOICING. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.4 GENERAL PAYMENT TERMS. Customer shall pay in full each invoice from Hyland net thirty (30) days from the date of Customer’s receipt of such invoice.
2.5 CERTAIN REMEDIES FOR NON-PAYMENT OR FOR LATE PAYMENT. At the election of Hyland, exercisable by written notice to Customer, any past due amounts under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of any default by Customer in the payment of any amounts invoiced by Hyland, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment, Hyland shall have the right to suspend or cease the provision of any Maintenance and Support, and the delivery of any Upgrades and Enhancements of Software, unless and until such default shall have been cured.
2.6 CURRENCY; DELIVERY AND SHIPMENT OF HASPS, CDS, AND EQUIPMENT. Unless otherwise agreed by Hyland, all fees, costs and expenses under these Terms shall be determined and invoiced in, and all payments required to be made in connection with these Terms shall be made in, U.S. dollars. Delivery of HASPs, if any, shall be F.O.B. Hyland’s (or its affiliate’s) offices and Hyland will select the shipping method and carrier.
3. MAINTENANCE AND SUPPORT.
3.1 GENERALLY. Provided that Customer is current in its payment of annual maintenance fees, Hyland will provide Customer the following assistance and support with respect to Software: (a) telephone or online technical support related to problems reported by a Technical Contact and associated with the operation of any Software; (b) reasonable efforts to correct any Error in the Software reported by a Technical Contact, which may be effected by a reasonable work-around, according to the severity of the confirmed Error as determined by Hyland; and (c) the provision of Upgrades and Enhancements, if and when released by Hyland, in accordance with Hyland’s policies. Hyland may elect to correct an Error in the current available or in the next available commercially released version of the Software, such that Customer may be required to implement an Upgrade and Enhancement in order to obtain the correction. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software and Hyland’s policies respecting Upgrades and Enhancements and the release thereof, if any. In requesting Maintenance and Support services, Customer will report in accordance with Hyland’s then-applicable reporting policies. Maintenance and Support is not available for Retired Software. THESE TERMS ARE NOT A WORK-FOR-HIRE AGREEMENT.
3.2 REQUESTING SUPPORT. In requesting Maintenance and Support, Customer’s Technical Contact will submit requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. In the case of reporting an Error, Customer’s Technical Contact will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the Error. Customer’s Technical Contact will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes, such as network installation/expansion, Software upgrades, relocations, etc.
3.3 GENERAL EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support: (1) in connection with any Errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software, or from any Error or defect in any configuration of the Software, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any Error or defect if Hyland has previously provided corrections for such Error or defect which Customer fails to implement; (3) in connection with any Errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware or any system or networking utilized by Customer; (4) if the Software or related software or systems have been subjected to abuse, misuse (including use contrary to the Documentation, manufacturer’s specifications, or duty cycles, or with software or hardware not supported by the applicable Software), improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software. Maintenance and Support is not provided for any Work Products. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement.
3.4 LAPSED MAINTENANCE AND SUPPORT. If Maintenance and Support has lapsed for any reason, reinstatement of Maintenance and Support will be at Hyland’s discretion, and subject to re-instatement fees.
3.5 CUSTOMER OBLIGATIONS. Hyland’s obligation to provide Maintenance and Support as described in this Section is subject to Customer’s compliance with these Terms, including without limitation the obligations described in Section 4 of these Terms.
4. CUSTOMER OBLIGATIONS.
4.1 OPERATION AND PROTECTION OF SYSTEMS. Customer acknowledges and agrees that it is solely responsible for the operation, supervision, management and control of the Software and all related hardware and software (including the database software); and for obtaining or providing training for its personnel; and for instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use. CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
4.2 ON-LINE ACCESS. Customer acknowledges and agrees that Hyland may require on-line access to the Software installed on Customer’s systems in order to provide Maintenance and Support. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support. Such right of access and use shall be provided at no cost or charge to Hyland. If Customer requests services which are outside the scope of Maintenance and Support, including, but not limited to, on premises services, Customer agrees that such services shall not be covered by this Section and such services only shall be engaged pursuant to a professional services agreement entered between Hyland and Customer.
5. LIMITED WARRANTY FOR MAINTENANCE AND SUPPORT SERVICES. For a period of sixty (60) days from the date of completion of Maintenance and Support services, Hyland warrants to Customer that such services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under these Terms. Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties hereunder shall be as follows: provided that, within the applicable warranty period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies). If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time, Customer’s sole and exclusive remedy shall be to exercise its termination rights under these Terms.
6. DISCLAIMER OF WARRANTIES.
6.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN SECTION 5 OF THESE TERMS, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE OR MAINTENANCE AND SUPPORT PROVIDED UNDER THESE TERMS. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY SOFTWARE OR MAINTENANCE AND SUPPORT PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE PROVIDED WILL BE UNINTERRUPTED. HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
6.2 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in these Terms is authorized unless it is set forth in writing, references these Terms, and is signed on behalf of Hyland by a corporate officer.
7. LIMITATIONS OF LIABILITY.
7.1 NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF HYLAND, SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, GOODWILL, SAVINGS OR PROFITS (EXCLUDING FEES DUE UNDER THESE TERMS), LOSS OR CORRUPTION OF DATA OR PROGRAMS, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS.
7.2 HYLAND’S (INCLUDING ITS AFFILIATES AND SUPPLIERS) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THROEY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO HYLAND (LESS ANY REFUNDS OR CREDITS) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST GIVING RISE TO SUCH CLAIM.
8. CONFIDENTIAL INFORMATION.
8.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of these Terms by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without reference to the other party’s information.
8.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use or disclose to any third party any such Confidential Information, except as may be required by law or court order or as provided under these Terms. Each party shall be liable and responsible for any breach of this Section committed by any of such party’s employees, agents, consultants, contractors or representatives.
9. TERM.
9.1 TERM. These Terms shall continue in full force and effect for as long as Hyland is providing Maintenance and Support to Customer.
9.2 TERMINATION. Either party may terminate these Terms, in each case in its entirety, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of these Terms and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party.
9.3 CERTAIN EFFECTS OR CONSEQUENCES OF TERMINATION; SURVIVAL OF CERTAIN PROVISIONS.
9.3.1 Generally. Any termination of these Terms will not discharge or otherwise affect any pre-termination obligations of either party existing under these Terms at the time of termination, and all liabilities which have accrued prior to the date of termination shall survive. In the event that Customer terminates these Terms for cause due to Hyland’s breach, Customer shall be entitled to a pro rata refund of annual maintenance fees actually paid for the annual maintenance period which terminates as a result of such termination; otherwise, Customer is not entitled to any refund of annual maintenance fees paid.
9.3.2 Survival of Certain Obligations. All provisions set forth in these Terms, which by their nature extend beyond the termination of these Terms will survive and remain in effect until all obligations are satisfied, including, but not limited to, Sections 6 through 11. For clarity, Hyland will have no obligation to provide Maintenance and Support following any termination of these Terms.
10. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to these Terms (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under these Terms is postponed or extended pursuant to this Section for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate these Terms.
11. GENERAL PROVISIONS.
11.1 GOVERNING LAW; JURISDICTION. These Terms and any claim, action, suit, proceeding or dispute arising out of these Terms shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of these Terms shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
11.2 INTERPRETATION. The headings used in these Terms are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in these Terms shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to these Terms.
11.3 WAIVER. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
11.4 INTEGRATION. These Terms set forth the entire agreement and understanding between the parties pertaining to the subject matter and merge all prior agreements, negotiations and discussions between them on the same subject matter. These Terms shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer specifically acknowledges and agrees that any other terms varying from or adding to these Terms, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by Hyland. These Terms will prevail over any conflicting stipulations contained or referenced in any other document.
11.5 NOTICES. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under these Terms shall be in writing and sent to each party, by either: (A) reputable, overnight courier, specifying next day delivery to the address specified on the invoice to which these Terms are linked; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
In cases where the Hyland contracting party is not Hyland Software, Inc., all notices shall also be sent with copy to:
Hyland Software, Inc.
28105 Clemens Road
Westlake, OH 44145
Attn: General Counsel
11.6 BINDING EFFECT; NO ASSIGNMENT. These Terms shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of these Terms or its rights or obligations under these Terms, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of these Terms in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under these Terms. Notwithstanding anything to the contrary, Hyland may assign these Terms to any Hyland affiliate without the consent of the other party upon written notice to the other party. Any assignment made without compliance with the provisions of this Section 11.6 shall be null and void and of no force or effect. The parties agree that Hyland may assign or subcontract all or part of its obligations contemplated by these Terms to a Hyland affiliate.
11.7 SEVERABILITY. If any provision of these Terms is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
11.8 SUBCONTRACTING. Hyland may subcontract all or any part of Maintenance and Support services. Hyland shall remain responsible to Customer for the provision of any subcontracted services.
11.9 INDEPENDENT CONTRACTOR. The parties hereto are independent contractors under these Terms and nothing in these Terms authorizes a party to act as a legal representative or agent of the other party for any purpose or to commit the other party to any obligations with a third party, including, but not limited to, any obligations related to such other party’s employees. It is expressly understood that these Terms do not establish a franchise relationship, partnership, principal-agent relationship or joint venture.
Resource as a Service (RaaS) Schedule
Effective March 26th 2024
DownloadTable of Contents
- All services will be performed remotely;
- Services will be provided in English only;
- Services will be provided during Standard Business Hours defined as 8:00 a.m. to 5:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location;
- The number of Hyland employees who will provide RaaS services hereunder (“Resources”) will correspond to the Qty. listed on the Order Form and may be designated as a part-time Resource or a full-time Resource; and
- Resources assigned to perform the Services may be employees of Hyland Software, Inc. or its’ subsidiaries located in other countries. Such resources may have access to Customer’s data and Customer consents to such access and, to the extent applicable, waives any restrictions in the Underlying Agreement (as defined in the Order Form, if applicable) prohibiting the use of such resources or access to Customer’s data as needed to perform the Services.
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Customer is responsible to supervise and direct the activities of all Resources provided for this engagement. Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software. Customer shall be solely responsible for assigning work to the Resource which is within the scope of the assigned Resource’s knowledge and experience, and Customer shall determine priority and length (during the term of this engagement) of the services to be performed:
- Customer agrees and acknowledges that the Resource assigned will be acting under the direction of Customer’s project team(s). Customer is responsible for all deliverables, the project approach, project management activities and the overall success of the solution; and
- Customer understands and acknowledges that the services provided by the Resource may not result in a completed solution. All work that may not be completed will be transitioned to Customer’s project team in its existing state. Customer will assume responsibility for any and all open tasks unless Customer chooses to contract additional RaaS hours from Hyland;
- RaaS will not replace Company’s technical support team as a first point of contact for Maintenance and Support but, instead, will work with Hyland’s technical support team to attempt to resolve issues as efficiently and effectively as reasonably possible;
- If, at any time, a Resource providing services to Customer under this engagement is reasonably and in good faith deemed by Customer to be performing such services unacceptably due to a legitimate reason related to the services, Hyland shall use reasonable efforts to promptly work with Customer to resolve any such issues;
- At any time during the engagement, Hyland and Customer may discuss if Customer’s requirements do not align with the skillsets or platform expertise of the Resource provided and, if so, both parties may mutually agree to modify the type of Hyland resources provided hereunder.
- Consultation, expertise and/or support of third party software or hardware;
- Replacement for general Technical Support or Cloud Product Engineering Support;
- Direct database modifications; and
- Full project management and delivery utilizing Hyland’s formal project methodology in any form.
- Solution/project planning;
- Solution discovery;
- Solution documentation;
- Solution design;
- Solution implementation;
- Solution testing; and
- Solution support.
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary; and
- The sponsor/manager will manage all customer obligations as defined within this Schedule;
- Customer is responsible for timely completion of deliverables and action items throughout the course of the project;
- Customer will assign and Hyland will have access to the appropriate business process owners and resources for the project in a timely manner when requested;
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment; typically, the resource requesting assistance will be the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Schedule.
- Collaboration with Hyland resources on project schedules;
- Coordination of key departmental decision maker(s), subject matter expert(s), end-user representative(s), third party software application resources, project team representative(s) related to the project area, steering committee, project sponsorship;
- Facilitate timely decision making and resolution of issues;
- Coordination of Customer resources for any applicable testing and regression testing cycles;
- Tracking and reporting test results; and
- If applicable, arrange for physical workspace and tools (desks, meeting rooms, training rooms, conference phones, etc.) for duration of the project to accommodate scheduled onsite activities.
- Customer will provide access and privileges to Hyland resources enabling full administration of the software and solution, including installation of software, configuration modifications, and modification of server and OS settings;
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer’s environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- For on-premises Customers, this includes:
- Local and remote VPN access must be provided to applicable Hyland resources through the use of dedicated user account(s) with appropriate privileges to the Software and/or relevant third party applications; and
- Access must be provided prior to Hyland’s arrival at Customer facilities and/or project discovery sessions;
- For on-premises Customers, this includes:
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go- live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
| Services | Description |
| Solution/Project Planning | Assistance with planning the needs of a designated project, including budget, escalation, status and/or scheduling. |
| Solution Discovery | Discovery session with the customer’s subject matter and technical expert(s) to define a solution. |
| Solution Documentation | If applicable, Hyland will provide documentation related to solution changes or requirements, which may include requirements documentation, user testing documentation and training documentation. |
| Solution Design | Assistance with Outlining and defining details about solution functionality and configuration. |
| Solution Implementation | Assistance with the installation and configuration of a solution. |
| Solution Testing | Solution testing support, which may include integration testing and customer led user testing |
| Solution Support | Technical advice and assistance regarding solution operation. |
| Add-Ons Available |
| Onsite Resource |
Effective February 29th 2024 to March 26th 2024
DownloadTable of Contents
- All services will be performed remotely;
- Services will be provided in English only;
- Services will be provided during Standard Business Hours defined as 8:00 a.m. to 5:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location;
- The number of Hyland employees who will provide RaaS services hereunder (“Resources”) will correspond to the Qty. listed on the Order Form and may be designated as a part-time Resource or a full-time Resource; and
- Resources assigned to perform the Services may be employees of Hyland Software, Inc. or its’ subsidiaries located in other countries. Such resources may have access to Customer’s data and Customer consents to such access and, to the extent applicable, waives any restrictions in the Underlying Agreement (as defined in the Order Form, if applicable) prohibiting the use of such resources or access to Customer’s data as needed to perform the Services.
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Customer is responsible to supervise and direct the activities of all Resources provided for this engagement. Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software. Customer shall be solely responsible for assigning work to the Resource which is within the scope of the assigned Resource’s knowledge and experience, and Customer shall determine priority and length (during the term of this engagement) of the services to be performed:
- Customer agrees and acknowledges that the Resource assigned will be acting under the direction of Customer’s project team(s). Customer is responsible for all deliverables, the project approach, project management activities and the overall success of the solution; and
- Customer understands and acknowledges that the services provided by the Resource may not result in a completed solution. All work that may not be completed will be transitioned to Customer’s project team in its existing state. Customer will assume responsibility for any and all open tasks unless Customer chooses to contract additional RaaS hours from Hyland;
- RaaS will not replace Company’s technical support team as a first point of contact for Maintenance and Support but, instead, will work with Hyland’s technical support team to attempt to resolve issues as efficiently and effectively as reasonably possible;
- If, at any time, a Resource providing services to Customer under this engagement is reasonably and in good faith deemed by Customer to be performing such services unacceptably due to a legitimate reason related to the services, Hyland shall use reasonable efforts to promptly work with Customer to resolve any such issues;
- At any time during the engagement, Hyland and Customer may discuss if Customer’s requirements do not align with the skillsets or platform expertise of the Resource provided and, if so, both parties may mutually agree to modify the type of Hyland resources provided hereunder.
- Consultation, expertise and/or support of third party software or hardware;
- Replacement for general Technical Support or Cloud Product Engineering Support;
- Direct database modifications; and
- Full project management and delivery utilizing Hyland’s formal project methodology in any form.
- Solution/project planning;
- Solution discovery;
- Solution documentation;
- Solution design;
- Solution implementation;
- Solution testing; and
- Solution support.
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary; and
- The sponsor/manager will manage all customer obligations as defined within this Schedule;
- Customer is responsible for timely completion of deliverables and action items throughout the course of the project;
- Customer will assign and Hyland will have access to the appropriate business process owners and resources for the project in a timely manner when requested;
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment; typically, the resource requesting assistance will be the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Schedule.
- Collaboration with Hyland resources on project schedules;
- Coordination of key departmental decision maker(s), subject matter expert(s), end-user representative(s), third party software application resources, project team representative(s) related to the project area, steering committee, project sponsorship;
- Facilitate timely decision making and resolution of issues;
- Coordination of Customer resources for any applicable testing and regression testing cycles;
- Tracking and reporting test results; and
- If applicable, arrange for physical workspace and tools (desks, meeting rooms, training rooms, conference phones, etc.) for duration of the project to accommodate scheduled onsite activities.
- Customer will provide access and privileges to Hyland resources enabling full administration of the software and solution, including installation of software, configuration modifications, and modification of server and OS settings;
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer’s environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- For on-premises Customers, this includes:
- Local and remote VPN access must be provided to applicable Hyland resources through the use of dedicated user account(s) with appropriate privileges to the Software and/or relevant third party applications; and
- Access must be provided prior to Hyland’s arrival at Customer facilities and/or project discovery sessions;
- For on-premises Customers, this includes:
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go- live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
| Services | Description |
| Solution/Project Planning | Assistance with planning the needs of a designated project, including budget, escalation, status and/or scheduling. |
| Solution Discovery | Discovery session with the customer’s subject matter and technical expert(s) to define a solution. |
| Solution Documentation | If applicable, Hyland will provide documentation related to solution changes or requirements, which may include requirements documentation, user testing documentation and training documentation. |
| Solution Design | Assistance with Outlining and defining details about solution functionality and configuration. |
| Solution Implementation | Assistance with the installation and configuration of a solution. |
| Solution Testing | Solution testing support, which may include integration testing and customer led user testing |
| Solution Support | Technical advice and assistance regarding solution operation. |
| Add-Ons Available |
| Onsite Resource |
Effective January 17th 2024 to February 29th 2024
DownloadTable of Contents
- All services will be performed remotely;
- Services will be provided in English only;
- Services will be provided during Standard Business Hours defined as 8:00 a.m. to 5:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location;
- The number of Hyland employees who will provide RaaS services hereunder (“Resources”) will correspond to the Qty. listed on the Order Form and may be designated as a part-time Resource or a full-time Resource; and
- Resources assigned to perform the Services may be employees of Hyland Software, Inc. or its’ subsidiaries located in other countries. Such resources may have access to Customer’s data and Customer consents to such access and, to the extent applicable, waives any restrictions in the Underlying Agreement (as defined in the Order Form, if applicable) prohibiting the use of such resources or access to Customer’s data as needed to perform the Services.
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Customer is responsible to supervise and direct the activities of all Resources provided for this engagement. Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software. Customer shall be solely responsible for assigning work to the Resource which is within the scope of the assigned Resource’s knowledge and experience, and Customer shall determine priority and length (during the term of this engagement) of the services to be performed:
- Customer agrees and acknowledges that the Resource assigned will be acting under the direction of Customer’s project team(s). Customer is responsible for all deliverables, the project approach, project management activities and the overall success of the solution; and
- Customer understands and acknowledges that the services provided by the Resource may not result in a completed solution. All work that may not be completed will be transitioned to Customer’s project team in its existing state. Customer will assume responsibility for any and all open tasks unless Customer chooses to contract additional RaaS hours from Hyland;
- RaaS will not replace Company’s technical support team as a first point of contact for Maintenance and Support but, instead, will work with Hyland’s technical support team to attempt to resolve issues as efficiently and effectively as reasonably possible;
- If, at any time, a Resource providing services to Customer under this engagement is reasonably and in good faith deemed by Customer to be performing such services unacceptably due to a legitimate reason related to the services, Hyland shall use reasonable efforts to promptly work with Customer to resolve any such issues;
- At any time during the engagement, Hyland and Customer may discuss if Customer’s requirements do not align with the skillsets or platform expertise of the Resource provided and, if so, both parties may mutually agree to modify the type of Hyland resources provided hereunder.
- Consultation, expertise and/or support of third party software or hardware;
- Replacement for general Technical Support or Cloud Product Engineering Support;
- Direct database modifications; and
- Full project management and delivery utilizing Hyland’s formal project methodology in any form.
- Solution/project planning;
- Solution discovery;
- Solution documentation;
- Solution design;
- Solution implementation;
- Solution testing; and
- Solution support.
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary; and
- The sponsor/manager will manage all customer obligations as defined within this Schedule;
- Customer is responsible for timely completion of deliverables and action items throughout the course of the project;
- Customer will assign and Hyland will have access to the appropriate business process owners and resources for the project in a timely manner when requested;
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment; typically, the resource requesting assistance will be the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Schedule.
- Collaboration with Hyland resources on project schedules;
- Coordination of key departmental decision maker(s), subject matter expert(s), end-user representative(s), third party software application resources, project team representative(s) related to the project area, steering committee, project sponsorship;
- Facilitate timely decision making and resolution of issues;
- Coordination of Customer resources for any applicable testing and regression testing cycles;
- Tracking and reporting test results; and
- If applicable, arrange for physical workspace and tools (desks, meeting rooms, training rooms, conference phones, etc.) for duration of the project to accommodate scheduled onsite activities.
- Customer will provide access and privileges to Hyland resources enabling full administration of the software and solution, including installation of software, configuration modifications, and modification of server and OS settings;
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer’s environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- For on-premises Customers, this includes:
- Local and remote VPN access must be provided to applicable Hyland resources through the use of dedicated user account(s) with appropriate privileges to the Software and/or relevant third party applications; and
- Access must be provided prior to Hyland’s arrival at Customer facilities and/or project discovery sessions;
- For on-premises Customers, this includes:
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go- live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
| Services | Description |
| Solution/Project Planning | Assistance with planning the needs of a designated project, including budget, escalation, status and/or scheduling. |
| Solution Discovery | Discovery session with the customer’s subject matter and technical expert(s) to define a solution. |
| Solution Documentation | If applicable, Hyland will provide documentation related to solution changes or requirements, which may include requirements documentation, user testing documentation and training documentation. |
| Solution Design | Assistance with Outlining and defining details about solution functionality and configuration. |
| Solution Implementation | Assistance with the installation and configuration of a solution. |
| Solution Testing | Solution testing support, which may include integration testing and customer led user testing |
| Solution Support | Technical advice and assistance regarding solution operation, which Includes help desk services. |
| Add-Ons Available |
| Onsite Resource |
Effective October 31st 2023 to January 17th 2024
DownloadTable of Contents
- All services will be performed remotely;
- Services will be provided in English only;
- Services will be provided during Standard Business Hours defined as 8:00 a.m. to 5:00 p.m. Customer’s local time zone Monday through Friday, in Customer’s designated primary location;
- The number of Hyland employees who will provide RaaS services hereunder (“Resources”) will correspond to the Qty. listed on the Order Form and may be designated as a part-time Resource or a full-time Resource; and
- Resources assigned to perform the Services may be employees of Hyland Software, Inc. or its’ subsidiaries located in other countries. Such resources may have access to Customer’s data and Customer consents to such access and, to the extent applicable, waives any restrictions in the Underlying Agreement (as defined in the Order Form, if applicable) prohibiting the use of such resources or access to Customer’s data as needed to perform the Services.
- Hyland will coordinate normally scheduled vacation and holiday absences with Customer in advance of those absences. Hyland will notify Customer when a given resource is unavailable due to sickness;
- Customer is responsible to supervise and direct the activities of all Resources provided for this engagement. Customer is specifically prohibited from assigning or using any Resource in a manner which violates the terms of Customer’s license to Software. Customer shall be solely responsible for assigning work to the Resource which is within the scope of the assigned Resource’s knowledge and experience, and Customer shall determine priority and length (during the term of this engagement) of the services to be performed:
- Customer agrees and acknowledges that the Resource assigned will be acting under the direction of Customer’s project team(s). Customer is responsible for all deliverables, the project approach, project management activities and the overall success of the solution; and
- Customer understands and acknowledges that the services provided by the Resource may not result in a completed solution. All work that may not be completed will be transitioned to Customer’s project team in its existing state. Customer will assume responsibility for any and all open tasks unless Customer chooses to contract additional RaaS hours from Hyland;
- RaaS will not replace Company’s technical support team as a first point of contact for Maintenance and Support but, instead, will work with Hyland’s technical support team to attempt to resolve issues as efficiently and effectively as reasonably possible;
- If, at any time, a Resource providing services to Customer under this engagement is reasonably and in good faith deemed by Customer to be performing such services unacceptably due to a legitimate reason related to the services, Hyland shall use reasonable efforts to promptly work with Customer to resolve any such issues;
- At any time during the engagement, Hyland and Customer may discuss if Customer’s requirements exceed the level or type of Resource provided under this Schedule and, if so, both parties may mutually agree to modify the type or number of Hyland resources provided hereunder.
- Consultation, expertise and/or support of third party software or hardware;
- Replacement for general Technical Support or Cloud Product Engineering Support;
- Direct database modifications; and
- Full project management and delivery utilizing Hyland’s formal project methodology in any form.
- Solution/project planning;
- Solution discovery;
- Solution documentation;
- Solution design;
- Solution implementation;
- Solution testing; and
- Solution support.
- Customer will assign a sponsor/manager, who is the final escalation point for all issues and decisions:
- The sponsor/manager will ensure that the appropriate Customer personnel are assigned and made available, when necessary; and
- The sponsor/manager will manage all customer obligations as defined within this Schedule;
- Customer is responsible for timely completion of deliverables and action items throughout the course of the project;
- Customer will assign and Hyland will have access to the appropriate business process owners and resources for the project in a timely manner when requested;
- Customer resource(s) requesting assistance must have a working knowledge of Software as well as the overall solution and environment; typically, the resource requesting assistance will be the designated Software administrator/owner;
- Customer will engage the appropriate business process owners and subject matter experts, who are thoroughly knowledgeable about the current business practices in their respective areas and who are capable of performing their assigned project roles;
- Customer will provide vendor resources, interface specialists, technical experts, and/or subject matter experts deemed necessary for third party system(s) with which Software will integrate or from which content will be migrated;
- Customer will notify Hyland of Customer personnel changes to the extent personnel changes impact the performance of Hyland’s obligations under this Schedule.
- Collaboration with Hyland resources on project schedules;
- Coordination of key departmental decision maker(s), subject matter expert(s), end-user representative(s), third party software application resources, project team representative(s) related to the project area, steering committee, project sponsorship;
- Facilitate timely decision making and resolution of issues;
- Coordination of Customer resources for any applicable testing and regression testing cycles;
- Tracking and reporting test results; and
- If applicable, arrange for physical workspace and tools (desks, meeting rooms, training rooms, conference phones, etc.) for duration of the project to accommodate scheduled onsite activities.
- Customer will provide access and privileges to Hyland resources enabling full administration of the software and solution, including installation of software, configuration modifications, and modification of server and OS settings;
- Customer is responsible for taking the appropriate actions to enable connectivity and access to the Customer’s environment, whether on-premises or hosted, for Hyland in a timely manner in advance of the start of the Initial Term.
- For on-premises Customers, this includes:
- Local and remote VPN access must be provided to applicable Hyland resources through the use of dedicated user account(s) with appropriate privileges to the Software and/or relevant third party applications; and
- Access must be provided prior to Hyland’s arrival at Customer facilities and/or project discovery sessions;
- For on-premises Customers, this includes:
- Customer is responsible for providing proper credentials for Hyland to access the Software solution;
- Customer will ensure the necessary remote access for Hyland resources;
- Customer will manage third party application setup (i.e. installation, configuration), testing, training, and go- live support related to integration(s) with Software;
- Customer will package and deploy all Software clients, unless otherwise mutually agreed to; and
- Customer will deploy all supporting Software client hardware (e.g. scanner, signature device) and related third party software (e.g. drivers, licenses) required for the Software solution.
| Services | Description |
| Solution/Project Planning | Assistance with planning the needs of a designated project, including budget, escalation, status and/or scheduling. |
| Solution Discovery | Discovery session with the customer’s subject matter and technical expert(s) to define a solution. |
| Solution Documentation | If applicable, Hyland will provide documentation related to solution changes or requirements, which may include requirements documentation, user testing documentation and training documentation. |
| Solution Design | Assistance with Outlining and defining details about solution functionality and configuration. |
| Solution Implementation | Assistance with the installation and configuration of a solution. |
| Solution Testing | Solution testing support, which may include integration testing and customer led user testing |
| Solution Support | Technical advice and assistance regarding solution operation, which Includes help desk services. |
| Add-Ons Available |
| Onsite Resource |
Hyland Office Broker Terms
Effective November 20th 2023
DownloadTable of Contents
1. DEFINED TERMS. All capitalized terms used in these Hyland Office Broker Terms shall have the meaning ascribed them herein or, if not defined herein, as otherwise defined within the Agreement.
“Customer” as used in these Hyland Office Broker Terms, means the party entering into the Incorporating Document with Hyland, whether that be a Hyland direct customer or authorized channel partner.
“Customer Data” as used in these Hyland Office Broker Terms, means any and all electronic data and information submitted by Customer (or if Customer is an authorized channel partner, Customer’s end user) through the Hyland Office Broker.
“Hyland Office Broker” means Hyland’s Microsoft Office broker service, which enables the integration between the Software and Microsoft 365.
“Subscription Fees” as used in these Hyland Office Broker Terms, means periodic fees for the provision of the Hyland Office Broker and payable by Customer to Hyland.
2. HYLAND OFFICE BROKER TERMS.
If Customer is a direct customer of Hyland, Customer acknowledges and agrees that: (i) when it accesses or uses the Hyland Office Broker, Customer Data will be passed from Hyland to Microsoft for use by Customer through its Microsoft Office 365 subscription, (ii) Hyland has no liability for any access or use of such Customer Data by Microsoft, which is subject solely to the terms between Customer and Microsoft; and (iii) to the extent the data use and exchange with Microsoft via the Hyland Office Broker as described herein conflicts with any other term of the Agreement or any other agreement, these terms shall control.
If Customer is an authorized channel partner of Hyland, Customer agrees that Customer has a contract with its end user in which such end user acknowledges and agrees that: (i) when it accesses or uses the Hyland Office Broker, Customer Data will be passed from Hyland to Microsoft for use by such end user through its Microsoft Office 365 subscription, (ii) Hyland has no liability for any access or use of such Customer Data by Microsoft, which is subject solely to the terms between such end user and Microsoft; and (iii) to the extent the data use and exchange with Microsoft via the Hyland Office Broker as described herein conflicts with any other term of the Agreement or any other agreement with Customer or Hyland, these terms shall control.
3. SUBSCRIPTION FEES. Customer shall pay Hyland Subscription Fees for the Hyland Office Broker. The invoices for such Subscription Fees shall be paid in accordance with the Agreement, and if no payment terms are set forth in the Agreement, such invoices shall be due and payable by Customer net thirty (30) days from the date of the applicable invoice.
4. CONTROLLING LANGUAGE. Hyland may make other versions of these Hyland Office Broker Terms available in other languages at this online location. This English language version of these Hyland Office Broker Terms controls over any version of the Hyland Office Broker Terms made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Hyland Office Broker Terms is not made available at this online location in the Other Language, this English language version controls over any other version of these Hyland Office Broker Terms that may be made available at this online location in another language.
Effective November 14th 2023 to November 20th 2023
DownloadTable of Contents
1. DEFINED TERMS. All capitalized terms used in these Hyland Office Broker Terms shall have the meaning ascribed them herein or, if not defined herein, as otherwise defined within the Agreement.
“Customer” as used in these Hyland Office Broker Terms, means the party entering into the Incorporating Document with Hyland, whether that be a Hyland direct customer or authorized channel partner.
“Customer Data” as used in these Hyland Office Broker Terms, means any and all electronic data and information submitted by Customer (or if Customer is an authorized channel partner, Customer’s end user) through the Hyland Office Broker.
“Hyland Office Broker” means Hyland’s Microsoft Office broker service, which enables the integration between the Software and Microsoft 365.
“Subscription Fees” as used in these Hyland Office Broker Terms, means periodic fees for the provision of the Hyland Office Broker and payable by Customer to Hyland.
2. HYLAND OFFICE BROKER TERMS.
If Customer is a direct customer of Hyland, Customer acknowledges and agrees that: (i) when it accesses or uses the Hyland Office Broker, Customer Data will be passed from Hyland to Microsoft for use by Customer through its Microsoft Office 365 subscription, (ii) Hyland has no liability for any access or use of such Customer Data by Microsoft, which is subject solely to the terms between Customer and Microsoft; and (iii) to the extent the data use and exchange with Microsoft via the Hyland Office Broker as described herein conflicts with any other term of the Agreement or any other agreement, these terms shall control.
If Customer is an authorized channel partner of Hyland, Customer agrees that Customer has a contract with its end user in which such end user acknowledges and agrees that: (i) when it accesses or uses the Hyland Office Broker, Customer Data will be passed from Hyland to Microsoft for use by such end user through its Microsoft Office 365 subscription, (ii) Hyland has no liability for any access or use of such Customer Data by Microsoft, which is subject solely to the terms between such end user and Microsoft; and (iii) to the extent the data use and exchange with Microsoft via the Hyland Office Broker as described herein conflicts with any other term of the Agreement or any other agreement with Customer or Hyland, these terms shall control.
3. SUBSCRIPTION FEES. Customer shall pay Hyland Subscription Fees for the Hyland Office Broker. The invoices for such Subscription Fees shall be paid in accordance with the Agreement, and if no payment terms are set forth in the Agreement, such invoices shall be due and payable by Customer net thirty (30) days from the date of the applicable invoice.
4. CONTROLLING LANGUAGE. Hyland may make other versions of these Hyland Office Broker Terms available in other languages at this online location. This English language version of these Hyland Office Broker Terms controls over any version of the Hyland Office Broker Terms made available at this online location in another language if the Incorporating Document is in English. If the Incorporating Document is in a language other than English (such language, the “Other Language”), but these Hyland Office Broker Terms is not made available at this online location in the Other Language, this English language version controls over any other version of these Hyland Office Broker Terms that may be made available at this online location in another language.
Hyland Experience Guide
Hyland Offerings
Effective April 3rd 2024
DownloadTable of Contents
IMR Solution Version Information
Effective April 12th 2024
DownloadTable of Contents
| Solution Version | Release Date | Description/Notes |
|---|---|---|
4.0.0 | 04 Mar 2024 |
|
3.0.4 (current version) | 25 Jul 2023 |
|
BC v8.1.0 (current version) | 25 Jul 2023 |
|
3.0.3 | 27 Apr 2023 |
|
3.0.2 | 13 Apr 2023 |
|
BC v8.0.1 | 22 Feb 2023 | Minor script update |
3.0.1 | 12.16.2022 | Incorporation of Brainware Base Custom into IMR solution
|
2.0.0 | 4.15.22 |
|
1.0.0 | 6.1.18 | Legacy MVS release of the solution
|
| OnBase Version | OnBase 24.1 (24.1.1.1000) | OnBase 23.1 (23.1.1.1000) Current Minimum Build Supported | OnBase 22.1 (22.1.1.1000) | OnBase Foundation EP5 (21.1.14.1000) | OnBase Foundation EP4 20.8 | OnBase Foundation EP3 (20.3) | OnBase Foundation EP1(19.8) EP2 (19.2) | OnBase 18 | OnBase Pre 18 |
|---|---|---|---|---|---|---|---|---|---|
| Supported IMR Version(s) | 4.0.x | 4.0.x 3.0.x + - Legacy installs only. No net new installs. | 3.0.x - Legacy Installs Only Rotation Issue Fixed In 21.1.13.1000 (Validating) | 3.0.x - Legacy Installs Only Do Not USE EP5 Builds(21.x) Prior to21.1.1.14.1000 Rotation Issue Fixed In 21.1.37.100 2.0 - Legacy Installs Only | 3.0.x - Legacy Installs Only 2.0 - Legacy Installs Only | 2.0 - Legacy Installs Only 1.0 - Legacy Installs Only | 1.0 - Legacy Installs Only | 1.0 - Legacy Installs Only | IMR Not Available |
| IMR Version | IMR 4.0 | IMR 3.0 | IMR 2.0 | IMR 1.0 |
|---|---|---|---|---|
| Supported Brainware Package(s) | Brainware Base Custom v8.0 or v8.1 | Brainware Base Custom v8.0 or v8.1 | Brainware Base Custom v8.0 Brainware Base Custom v7.0 (For Legacy Installs) | Legacy Brainware Flat File Integration. Custom BIC package |
Hyland Experience Schedule
Effective June 6th 2024
DownloadTable of Contents
HYLAND EXPERIENCE SCHEDULE
This Hyland Experience Schedule (“Hx Schedule”) is part of the Hyland Master Agreement, Order Form or any other agreement or document between Customer and Hyland, which incorporates this Hx Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Hx Schedule, and any other agreement within which the Incorporating Document is incorporated.
1. DEFINED TERMS.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Customer Data” means all electronic data or information submitted by Customer or a User to Hyland Experience.
“Documentation” means the specifications, as published and periodically updated by Hyland, that describe the functionality of Hyland Experience.
“DPA” means the Global Data Processing Addendum, located at https://legal.hyland.com/Customer-Legal-Center#gdpr-customerdpa, which is fully incorporated herein by reference.
“Hyland Experience” means the Hyland Experience-branded cloud-based services made available by Hyland to Customer on a subscription basis, as further described in the Documentation, Hyland Experience Guide, and corresponding Order Form.
“Hyland Experience Guide” means the then-current additional commitments and obligations related to Hyland Experience made available by Hyland at https://legal.hyland.com/hyland-experience-guide (or at such other location provided by Hyland).
“Order Form” means unless otherwise defined in the General Terms Schedule, and as used in this Hx Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) identifying Hyland Experience, the associated fees, and other terms agreed to by the parties.
“Personal Data” if applicable, has the meaning set forth in the DPA.
“Support Services” means the technical support services described in the in the Hyland Experience Guide.
“Trial Services” means any Hyland product, service or functionality that may be made available by Hyland to Customer to try at Customer’s option, and which is designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “test” “evaluation,” or by a similar designation.
“Users” means: (a) employees of Customer and its Authorized Affiliate(s) that access and use Hyland Experience; and (b) any additional users to which Customer is authorized to provide access to Hyland Experience as expressly agreed in writing between the parties.
2 HYLAND EXPERIENCE
2.1 Provision of Hyland Experience.
2.1.1 In General. Hyland will make Hyland Experience available pursuant to this Agreement and the relevant Order Form during the term of the Product Subscription. Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use Hyland Experience as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
2.1.2 Upgrades. Hyland may (a) implement upgrades (e.g. bug fixes and enhancements) to Hyland Experience, and (b) update the Documentation and Hyland Experience Guide accordingly. Upgrades to Hyland Experience that are made generally available to all subscribing customers will be made at no additional charge. New features and functionality added to Hyland Experience may be marketed separately by Hyland and may require the payment of additional fees.
2.2 Hyland Experience Guide.
2.2.1 In General. Hyland will provide Hyland Experience pursuant to the applicable portions of the then-current Hyland Experience Guide.
2.2.2 Updates. Hyland reserves the right to update the Hyland Experience Guide at its discretion, provided that such updates do not diminish or reduce the commitments in the Hyland Experience Guide as of the Effective Date. Such updates will be effective thirty days after being posted on the Hyland Experience Guide. Customer’s continued access or use of Hyland Experience constitutes Customer’s acceptance of such updates.
2.3 Trial Services. If Customer registers or accepts an invitation for Trial Services, including through Hyland’s websites, or executes an Order Form for the same, Hyland will make such Trial Services available to Customer on a trial basis, until the earlier of (a) the end of the trial period for which Customer registered to use the applicable Trial Services, or (b) the end date specified in the applicable Order Form. Trial Services are provided for evaluation purposes and not for production use. Customer shall have sole responsibility and Hyland assumes no liability for any Customer Data that Customer may choose to upload on the Trial Services. Trial Services may contain bugs or errors. Hyland may, in its sole discretion, discontinue Trial Services at any time. CUSTOMER SHALL HAVE SOLE RESPONSIBILITY AND HYLAND ASSUMES NO LIABILITY FOR ANY CUSTOMER DATA THAT CUSTOMER MAY CHOOSE TO UPLOAD ON THE TRIAL SERVICES. TRIAL SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY.
2.4 Third-Party Services and Content. Hyland Experience contains functionality which allows Customer to, utilize, link or integrate Hyland Experience with services from third parties and/or to access third-party websites and content. Hyland has no responsibility for such third-party services, websites or content and no obligations related to third-party service failures. Any activities engaged in by Customer with third parties using Hyland Experience is solely between Customer and the applicable third party. Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third-party web sites that may be linked through Hyland Experience. Hyland is not responsible for any third-party content that is processed, accessed or used by Customer via Hyland Experience.
2.5 Additional Terms. Certain functionality of Hyland Experience, including corresponding components that are downloaded or installed locally on Customer’s systems. Such functionality and components may be subject to additional terms and conditions included in the Hyland Experience Guide. Customer’s access to or use of such functionality constitutes acceptance of such additional terms and conditions.
3.1 Scope of Processing. Hyland will process Customer Data solely: (a) to provide Hyland Experience and Support Services, (b) to prevent or address service or technical issues; (c) as instructed by Customer via written notice or as initiated by a User via functionality provided within Hyland Experience; or (d) as otherwise set forth in this Agreement. To the extent that Hyland processes Personal Data on behalf of Customer to provide Hyland Experience and Support Services, then the parties shall comply with the DPA.
3.2 Compliance with Law. Hyland will comply with all laws applicable to its provision of Hyland Experience, including applicable security breach notification laws. Hyland is not responsible for compliance with any laws or regulations applicable to a Customer, Customer’s industry, Users, or Users’ industry that are not generally applicable to information technology services providers. Hyland only processes Customer Data in accordance with this Agreement and does not determine whether Customer Data is subject to any specific law or regulation.
3.3 Customer Data. As between Customer and Hyland, Customer is and will remain the owner of all Customer Data, including any intellectual property rights therein. Customer hereby grants Hyland, its affiliates, and its subcontractors all necessary rights and authority to host, use, process, store, display and transmit Customer Data as set forth in this Agreement and for Hyland to provide Hyland Experience in accordance with this Agreement or to the extent required by applicable laws, rules or regulations.
3.4 Account Information, Aggregated Data, and Usage Data. Hyland may collect and use Account Information, Aggregated Data, and Usage Data for its own business purposes including developing, training, or improving its products or services. Hyland may only share Account Information, Aggregated Data, or Usage Data with third parties: (a) when permitted by this Agreement; or (b) if such information is aggregated, de-identified, or anonymized in such a way that Customer and Users cannot be identified. Hyland’s use and collection of Aggregated Data and Usage Data can be disabled by Customer, except: (y) for information related to the calculation of Fees; and (z) for the use of certain Trial Services. Instructions on how to disable this collection of Aggregated Data and Usage Data is described in the Documentation. Certain functionality of Hyland Experience may not be available to Customer’s that disable the collection of Aggregated Data or Usage Data (e.g. analytics reporting). "Account Information" means Customer and User registration and billing data that is required for user set-up, use and billing. "Aggregated Data" means all statistical data that is aggregated, anonymized and derived from the use and operation of Hyland Experience, including without limitation, the number of records in Hyland Experience, the number and types of transactions, configurations, actions, and reports processed as part of Hyland Experience and the performance results of Hyland Experience. "Usage Data" means information and insights generated from Customer’s use of Hyland Experience and data related to Customer’s configuration of Hyland Experience. For clarity, Account Information, Aggregated Data, and Usage Data do not include Customer Data.
3.5 Feedback. Customer grants to Hyland and its affiliates a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to incorporate into Hyland’s products or services any suggestions, enhancements, improvements, recommendations, or any other feedback provided by Customer, including Users.
4 CUSTOMER’S USE
4.1 Responsibilities.
4.1.1 In General. Customer will:
(a) use Hyland Experience in accordance with this Agreement, the Documentation, Hyland’s Acceptable Use Policy, and applicable laws and government regulations;
(b) be responsible for all Users use and all access through Customer and its Users of Hyland Experience and compliance with this Agreement, including, but not limited to, (1) setting-up User accounts (e.g., user names, passwords, tokens, etc.) to Hyland Experience and immediately revoking User accounts when a User no longer requires access to Hyland Experience, and (2) prohibiting Users from sharing log-in credentials;
(c) use reasonable efforts to prevent unauthorized access to or use of Hyland Experience;
(d) notify Hyland promptly of any unauthorized access or use of Hyland Experience of which it becomes aware;
(e) as between Hyland and Customer, be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer or User acquired Customer Data, and Customer’s and Users’ use of Customer Data with Hyland Experience;
(f) use available Hyland Experience security features and controls to properly transmit, store, process and provide access to Customer Data;
(g) use the tools and reporting capabilities made available in Hyland Experience to monitor and confirm Customer Data processing (e.g., electronic documents uploads); and
(h) designate its Customer Security Administrator. “Customer Security Administrators” (also referred to as “CSA” or “CSAs”) are individuals designated by Customer who are authorized to submit configuration change requests, speak authoritatively on behalf of Customer’s regarding Hyland Experience and shall receive and provide, as applicable, all notifications related to maintenance, security, service failures and the like. If Customer fails to designate the initial CSA, Hyland may at its option, designate the initial CSA as the individual who signed the Agreement on behalf of Customer.
4.1.2 Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use Hyland Experience.
4.1.3 Internal Administration by Customer. Customer may give any of its Users the ability, through the configuration tools included in Hyland Experience, to act as a system administrator. Customer is solely responsible for its internal management and administration of Customer’s instance of Hyland Experience.
4.1.4 Compliance with Laws. Customer has an independent duty to comply with all laws applicable to it. Customer’s use of Hyland Experience and compliance with any terms and conditions under this Agreement does not constitute compliance with any law.
4.2 Prohibited Acts.
4.2.1 Restrictions. Customer will not:
(a) license, sublicense, sell, resell, rent, lease, transfer, or distribute Hyland Experience, any Documentation or Hyland Experience Guide, or include Hyland Experience in any outsourced, service bureau or application service provider offering;
(b) make Hyland Experience available to anyone other than Customer or Customer’s Users
(c) use Hyland Experience for the benefit of anyone other than Customer, unless otherwise expressly stated in the Order Form or Documentation;
(d) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of Hyland Experience without advance written approval from Hyland;
(e) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile Hyland Experience or any part thereof or otherwise attempt to derive source code from, or modify Hyland Experience;
(f) disclose to any third party any benchmark or performance tests of Hyland Experience;
(g) make any use of Hyland Experience in any situation where failure of Hyland Experience could lead to death or serious injury or to severe physical or environmental damage;
(h) use Hyland Experience to create technology or software that is controlled under any relevant export control laws, rules or regulations; and
(i) use functionality included in Hyland Experience to, directly or indirectly, developer or improve a similar or competing product or service.
4.2.2 No High-Risk Use. Hyland Experience is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. Hyland Experience is not designed and not intended for use in any situation where failure or fault of any kind could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Hyland Experience is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of Hyland Experience for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its contractors use of Hyland Experience in connection with any High Risk Use.
4.2.3 Components. All components of Hyland Experience including any components that are downloaded or installed locally on Customer’s systems, are solely for use with Hyland Experience and may not be used on a stand-alone basis.
4.3 Excessive Use.
4.3.1 Infrastructure. The physical infrastructure of Hyland Experience is provisioned to Customer based on Customer’s subscription. If Customer’s use of Hyland Experience exceeds the usage limits of Customer’s subscription (“Excessive Use”), then the speed, availability, or number of API requests that Customer may make of Hyland Experience may be impacted. Customer may upgrade its current tier or purchase additional usage at any time. HYLAND DISCLAIMS ANY RESPONSIBILITY FOR THE ISSUANCE OF CREDITS PER THE HYLAND EXPERIENCE SERVICE LEVELS THAT WOULD BE DUE AS A RESULT OF EXCESSIVE USE.
4.3.2 Tier-Based Licensing. Hyland Experience contains functionality which Customer may purchase on a tier or volume basis. Such functionality may: (a) no longer function if applicable limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s usage; and (c) monitor or track Customer’s usage and report that usage. Customer may not circumvent or attempt to circumvent this restriction by any means.
4.3.3 Tier Increases. If Customer has licensed Hyland Experience on a tier-based subscription model (as indicated in the Order From) and exceeds the allotment for the applicable tier at any point during the term of the Product Subscription, then, at the next applicable renewal, Customer’s tier-based subscription will automatically increase to the next applicable tier.
4.4 Assessment. Hyland shall be permitted to assess Customer’s use of Hyland Experience to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s usage.
5 PRICES, INVOICES AND PAYMENT
5.1 Invoicing. Customer shall pay all fees in such amounts as specified in each Order Form including any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order Form or Hyland Experience Guide. Unless otherwise specified in an Order Form: (a) fees listed on a subscription basis will be invoiced annually in advance, (b) fees on a consumption basis will be calculated and invoiced monthly in arrears; and (c) fees for overages will be calculated and invoiced when incurred.
5.2 Renewals. Hyland may increase the annual fees for each renewal period by up to 10% of the previous year’s fees.
6 WARRANTIES AND AI DISCLAIMER
6.1 Hyland Experience Limited Warranty. Hyland warrants to Customer that (a) Hyland Experience will materially conform with the relevant Documentation; and (b) the security of Hyland Experience as described in the Hyland Experience Guide will not be materially decreased during the term of the Product Subscription.
6.2 Remedies. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland in this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of Hyland Experience, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practical, then terminate this Hx Schedule or the Agreement entirely (as the case may be) with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this Hx Schedule or the Agreement (as the case may be), Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid fees” shall mean an amount equal to the total fees paid by Customer for the non-conforming portion of Hyland Experience for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
6.3 Customer Limited Warranty. Customer warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use Hyland Experience in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with Hyland Experience, Support Services, or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and such submission does not violate any contracts, agreements, or any applicable law.
6.4 Artificial Intelligence. Hyland Experience may include artificial intelligence functionality that is designed to assist Customer with various tasks and processes. Such functionality is provided on an "as is" and "as available" basis and Hyland makes no representations or warranties of any kind, express or implied, as to the accuracy, reliability, or completeness of its output. Given the probabilistic nature of artificial intelligence technology, output generated and returned by such functionality may be incorrect and Hyland does not guarantee that the functionality will be error-free. Use of the artificial intelligence functionality is at Customer’s own risk and discretion. Customer is solely responsible to verify the accuracy and reliability of any output generated by the artificial intelligence functionality before making any decisions or taking any actions based on such output.
7 INDEMNIFICATION
7.1 By Customer. Customer will indemnify, defend and hold harmless Hyland and its affiliates from and against all liabilities, damages and costs and expenses, including reasonable attorneys’ fees, arising from or in connection with any third-party claim, action or proceeding instituted against Hyland based upon: (a) any Customer Data or third-party content provided by Customer and transmitted, stored, processed or used in Hyland Experience; or (b) Customer’s use of Hyland Experience in violation of this Agreement or laws, rules, or regulations applicable to Customer. Hyland will: (y) promptly notify Customer of any claim for which Hyland seeks indemnification; and (z) reasonably cooperate with Customer in defending and settling the claim.
7.2 By Hyland.
7.2.1 Intellectual Property. Hyland agrees to indemnify Customer from and against all: amounts awarded in, or paid in settlement of, and reasonable out-of-pocket expenses incurred in defending, any third-party judicial claim instituted against Customer stating, with specificity, that Customer’s use of Hyland Experience is the basis of the infringement or misappropriation of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of Hyland Experience or replace the alleged infringing portions of Hyland Experience with other equivalent, non-infringing alternatives so that it no longer infringes. If, in its reasonable opinion, Hyland is unable to achieve either option set forth in (d), Hyland may terminate this Agreement and Customer’s use of Hyland Experience upon thirty days advance written notice to Customer and refund to Customer a pro-rata refund of fees received by Hyland for the then current Product Subscription. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer to the extent that such claims arise from: (1) any Customer Data or third-party content; (2) use of Hyland Experience other than as expressly permitted by this Agreement; (3) the combination of Hyland Experience with any content, product, or service not furnished by Hyland; (4) the modification or addition of any component of Hyland Experience other than by Hyland or a contractor to Hyland specifically retained by Hyland to provide such modification or addition; or (5) Customer’s business methods or processes.
7.2.2 Sole and Exclusive. THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY BY HYLAND EXPERIENCE OR ANY COMPONENT THEREOF.
8 DATA EXTRACTION AND DELETION. For thirty days following termination or expiration of the Product Subscription, Hyland will make Customer Data available to Customer for export or download via the functionality in Hyland Experience as described in the Documentation. At the end of such thirty-day period, Hyland has no obligation to retain the Customer Data for Customer.
9 U.S. GOVERNMENT END USERS. If and only if Customer is the U.S. government, the terms and conditions of this Agreement shall pertain to the U.S. government’s use or disclosure of Hyland Experience or any of its components as Customer and shall supersede any conflicting contractual terms or conditions. As Customer, the U.S. government hereby agrees that all software include in Hyland Experience is computer software within the meaning of ALL federal acquisition regulation(s) applicable to this procurement and that such software is developed exclusively at private expense. If this right to use fails to meet the U.S. government’s needs or is inconsistent in any respect with federal law, the U.S. government agrees to cease using Hyland Experience. In addition to the foregoing, the rights of the US. Government to use, modify, reproduce, release, display or disclose Hyland Experience or any components thereof, including user documentation is subject solely to the terms of this Agreement, as stated in DFARS 227.7202, and the terms of this Agreement shall supersede any conflicting contractual terms or conditions
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil LTDA. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
1. Section 4.3 (PRICES, INVOICES, AND PAYMENT; Renewals) of the Hx Schedule shall be replaced in its entirety as follows:
Customer shall pay fees to Hyland for Hyland Experience in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay fees to Hyland for Hyland Experience as initially composed in accordance with the initial Order Form. Hyland will adjust the fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds expands its use of Hyland Experience and such increased use requires the payment of additional fees, Hyland will invoice Customer for such use on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, fees relating to such additional use shall be included in the subsequent invoices issued with respect to Hyland Experience.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
- The last sentence of the No High Risk Use Section of the Hx Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s culpable breach of this Section with regard to the use of Hyland Experience in connection with any High Risk Use.
2. The following provision shall be added to the end of the WARRANTIES AND AI DISCLAIMER Section of the Hx Schedule:
Any statutory rights of Customer regarding any damages resulting from the breach of the above warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this Hx Schedule is excluded.
3. Section 7.1 and Section 7.2.2 of the Hx Schedule shall not apply.
[The most current version of this page shall be such in effect as of 11:59 p.m. ET of the date stamped on such online version.]
Effective May 3rd 2024 to June 6th 2024
DownloadTable of Contents
HYLAND EXPERIENCE SCHEDULE
This Hyland Experience Schedule (“Hx Schedule”) is part of the Hyland Master Agreement, Order Form or any other agreement or document between Customer and Hyland, which incorporates this Hx Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Hx Schedule, and any other agreement within which the Incorporating Document is incorporated.
1. DEFINED TERMS.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Customer Data” means all electronic data or information submitted by Customer or a User to Hyland Experience.
“Documentation” means the specifications, as published and periodically updated by Hyland, that describe the functionality of Hyland Experience.
“DPA” means the Global Data Processing Addendum, located at https://legal.hyland.com/Customer-Legal-Center#gdpr-customerdpa, which is fully incorporated herein by reference.
“Hyland Experience” means the Hyland Experience-branded cloud-based services made available by Hyland to Customer on a subscription basis, as further described in the Documentation, Hyland Experience Guide, and corresponding Order Form.
“Hyland Experience Guide” means the then-current additional commitments and obligations related to Hyland Experience made available by Hyland at https://legal.hyland.com/hyland-experience-guide (or at such other location provided by Hyland).
“Order Form” means unless otherwise defined in the General Terms Schedule, and as used in this Hx Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) identifying Hyland Experience, the associated fees, and other terms agreed to by the parties.
“Personal Data” if applicable, has the meaning set forth in the DPA.
“Support Services” means the technical support services described in the in the Hyland Experience Guide.
“Trial Services” means any Hyland product, service or functionality that may be made available by Hyland to Customer to try at Customer’s option, and which is designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “test” “evaluation,” or by a similar designation.
“Users” means: (a) employees of Customer and its Authorized Affiliate(s) that access and use Hyland Experience; and (b) any additional users to which Customer is authorized to provide access to Hyland Experience as expressly agreed in writing between the parties.
2 HYLAND EXPERIENCE
2.1 Provision of Hyland Experience.
2.1.1 In General. Hyland will make Hyland Experience available pursuant to this Agreement and the relevant Order Form during the term of the Product Subscription. Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use Hyland Experience as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
2.1.2 Upgrades. Hyland may (a) implement upgrades (e.g. bug fixes and enhancements) to Hyland Experience, and (b) update the Documentation and Hyland Experience Guide accordingly. Upgrades to Hyland Experience that are made generally available to all subscribing customers will be made at no additional charge. New features and functionality added to Hyland Experience may be marketed separately by Hyland and may require the payment of additional fees.
2.2 Hyland Experience Guide.
2.2.1 In General. Hyland will provide Hyland Experience pursuant to the applicable portions of the then-current Hyland Experience Guide.
2.2.2 Updates. Hyland reserves the right to update the Hyland Experience Guide at its discretion, provided that such updates do not diminish or reduce the commitments in the Hyland Experience Guide as of the Effective Date. Such updates will be effective thirty days after being posted on the Hyland Experience Guide. Customer’s continued access or use of Hyland Experience constitutes Customer’s acceptance of such updates.
2.3 Trial Services. If Customer registers or accepts an invitation for Trial Services, including through Hyland’s websites, or executes an Order Form for the same, Hyland will make such Trial Services available to Customer on a trial basis, until the earlier of (a) the end of the trial period for which Customer registered to use the applicable Trial Services, or (b) the end date specified in the applicable Order Form. Trial Services are provided for evaluation purposes and not for production use. Customer shall have sole responsibility and Hyland assumes no liability for any Customer Data that Customer may choose to upload on the Trial Services. Trial Services may contain bugs or errors and may be subject to additional terms. TRIAL SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. Hyland may, in its sole discretion, discontinue Trial Services at any time. THE HYLAND EXPERIENCE GUIDE, INCLUDING HYLAND’S OBLIGATIONS STATED THEREIN, DOES NOT APPLY TO TRIAL SERVICES.
2.4 Third-Party Services and Content. Hyland Experience contains functionality which allows Customer to, utilize, link or integrate Hyland Experience with services from third parties and/or to access third-party websites and content. Hyland has no responsibility for such third-party services, websites or content and no obligations related to third-party service failures. Any activities engaged in by Customer with third parties using Hyland Experience is solely between Customer and the applicable third party. Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third-party web sites that may be linked through Hyland Experience. Hyland is not responsible for any third-party content that is processed, accessed or used by Customer via Hyland Experience.
2.5 Additional Terms. Certain functionality of Hyland Experience, including corresponding components that are downloaded or installed locally on Customer’s systems. Such functionality and components may be subject to additional terms and conditions included in the Hyland Experience Guide. Customer’s access to or use of such functionality constitutes acceptance of such additional terms and conditions.
3.1 Scope of Processing. Hyland will process Customer Data solely: (a) to provide Hyland Experience and Support Services, (b) to prevent or address service or technical issues; (c) as instructed by Customer via written notice or as initiated by a User via functionality provided within Hyland Experience; or (d) as otherwise set forth in this Agreement. To the extent that Hyland processes Personal Data on behalf of Customer to provide Hyland Experience and Support Services, then the parties shall comply with the DPA.
3.2 Compliance with Law. Hyland will comply with all laws applicable to its provision of Hyland Experience, including applicable security breach notification laws. Hyland is not responsible for compliance with any laws or regulations applicable to a Customer, Customer’s industry, Users, or Users’ industry that are not generally applicable to information technology services providers. Hyland only processes Customer Data in accordance with this Agreement and does not determine whether Customer Data is subject to any specific law or regulation.
3.3 Customer Data. As between Customer and Hyland, Customer is and will remain the owner of all Customer Data, including any intellectual property rights therein. Customer hereby grants Hyland, its affiliates, and its subcontractors all necessary rights and authority to host, use, process, store, display and transmit Customer Data as set forth in this Agreement and for Hyland to provide Hyland Experience in accordance with this Agreement or to the extent required by applicable laws, rules or regulations.
3.4 Account Information, Aggregated Data, and Usage Data. Hyland may collect and use Account Information, Aggregated Data, and Usage Data for its own business purposes including developing, training, or improving its products or services. Hyland may only share Account Information, Aggregated Data, or Usage Data with third parties: (a) when permitted by this Agreement; or (b) if such information is aggregated, de-identified, or anonymized in such a way that Customer and Users cannot be identified. Hyland’s use and collection of Aggregated Data and Usage Data can be disabled by Customer, except: (y) for information related to the calculation of Fees; and (z) for the use of certain Trial Services. Instructions on how to disable this collection of Aggregated Data and Usage Data is described in the Documentation. Certain functionality of Hyland Experience may not be available to Customer’s that disable the collection of Aggregated Data or Usage Data (e.g. analytics reporting). "Account Information" means Customer and User registration and billing data that is required for user set-up, use and billing. "Aggregated Data" means all statistical data that is aggregated, anonymized and derived from the use and operation of Hyland Experience, including without limitation, the number of records in Hyland Experience, the number and types of transactions, configurations, actions, and reports processed as part of Hyland Experience and the performance results of Hyland Experience. "Usage Data" means information and insights generated from Customer’s use of Hyland Experience and data related to Customer’s configuration of Hyland Experience. For clarity, Account Information, Aggregated Data, and Usage Data do not include Customer Data.
3.5 Feedback. Customer grants to Hyland and its affiliates a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to incorporate into Hyland’s products or services any suggestions, enhancements, improvements, recommendations, or any other feedback provided by Customer, including Users.
4 CUSTOMER’S USE
4.1 Responsibilities.
4.1.1 In General. Customer will:
(a) use Hyland Experience in accordance with this Agreement, the Documentation, Hyland’s Acceptable Use Policy, and applicable laws and government regulations;
(b) be responsible for all Users use and all access through Customer and its Users of Hyland Experience and compliance with this Agreement, including, but not limited to, (1) setting-up User accounts (e.g., user names, passwords, tokens, etc.) to Hyland Experience and immediately revoking User accounts when a User no longer requires access to Hyland Experience, and (2) prohibiting Users from sharing log-in credentials;
(c) use reasonable efforts to prevent unauthorized access to or use of Hyland Experience;
(d) notify Hyland promptly of any unauthorized access or use of Hyland Experience of which it becomes aware;
(e) as between Hyland and Customer, be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer or User acquired Customer Data, and Customer’s and Users’ use of Customer Data with Hyland Experience;
(f) use available Hyland Experience security features and controls to properly transmit, store, process and provide access to Customer Data;
(g) use the tools and reporting capabilities made available in Hyland Experience to monitor and confirm Customer Data processing (e.g., electronic documents uploads); and
(h) designate its Customer Security Administrator. “Customer Security Administrators” (also referred to as “CSA” or “CSAs”) are individuals designated by Customer who are authorized to submit configuration change requests, speak authoritatively on behalf of Customer’s regarding Hyland Experience and shall receive and provide, as applicable, all notifications related to maintenance, security, service failures and the like. If Customer fails to designate the initial CSA, Hyland may at its option, designate the initial CSA as the individual who signed the Agreement on behalf of Customer.
4.1.2 Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use Hyland Experience.
4.1.3 Internal Administration by Customer. Customer may give any of its Users the ability, through the configuration tools included in Hyland Experience, to act as a system administrator. Customer is solely responsible for its internal management and administration of Customer’s instance of Hyland Experience.
4.1.4 Compliance with Laws. Customer has an independent duty to comply with all laws applicable to it. Customer’s use of Hyland Experience and compliance with any terms and conditions under this Agreement does not constitute compliance with any law.
4.2 Prohibited Acts.
4.2.1 Restrictions. Customer will not:
(a) license, sublicense, sell, resell, rent, lease, transfer, or distribute Hyland Experience, any Documentation or Hyland Experience Guide, or include Hyland Experience in any outsourced, service bureau or application service provider offering;
(b) make Hyland Experience available to anyone other than Customer or Customer’s Users
(c) use Hyland Experience for the benefit of anyone other than Customer, unless otherwise expressly stated in the Order Form or Documentation;
(d) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of Hyland Experience without advance written approval from Hyland;
(e) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile Hyland Experience or any part thereof or otherwise attempt to derive source code from, or modify Hyland Experience;
(f) disclose to any third party any benchmark or performance tests of Hyland Experience;
(g) make any use of Hyland Experience in any situation where failure of Hyland Experience could lead to death or serious injury or to severe physical or environmental damage;
(h) use Hyland Experience to create technology or software that is controlled under any relevant export control laws, rules or regulations; and
(i) use functionality included in Hyland Experience to, directly or indirectly, developer or improve a similar or competing product or service.
4.2.2 No High-Risk Use. Hyland Experience is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. Hyland Experience is not designed and not intended for use in any situation where failure or fault of any kind could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Hyland Experience is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of Hyland Experience for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its contractors use of Hyland Experience in connection with any High Risk Use.
4.2.3 Components. All components of Hyland Experience including any components that are downloaded or installed locally on Customer’s systems, are solely for use with Hyland Experience and may not be used on a stand-alone basis.
4.3 Excessive Use.
4.3.1 Infrastructure. The physical infrastructure of Hyland Experience is provisioned to Customer based on Customer’s subscription. If Customer’s use of Hyland Experience exceeds the usage limits of Customer’s subscription (“Excessive Use”), then the speed, availability, or number of API requests that Customer may make of Hyland Experience may be impacted. Customer may upgrade its current tier or purchase additional usage at any time. HYLAND DISCLAIMS ANY RESPONSIBILITY FOR THE ISSUANCE OF CREDITS PER THE HYLAND EXPERIENCE SERVICE LEVELS THAT WOULD BE DUE AS A RESULT OF EXCESSIVE USE.
4.3.2 Tier-Based Licensing. Hyland Experience contains functionality which Customer may purchase on a tier or volume basis. Such functionality may: (a) no longer function if applicable limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s usage; and (c) monitor or track Customer’s usage and report that usage. Customer may not circumvent or attempt to circumvent this restriction by any means.
4.3.3 Tier Increases. If Customer has licensed Hyland Experience on a tier-based subscription model (as indicated in the Order From) and exceeds the allotment for the applicable tier at any point during the term of the Product Subscription, then, at the next applicable renewal, Customer’s tier-based subscription will automatically increase to the next applicable tier.
4.4 Assessment. Hyland shall be permitted to assess Customer’s use of Hyland Experience to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s usage.
5 PRICES, INVOICES AND PAYMENT
5.1 Invoicing. Customer shall pay all fees in such amounts as specified in each Order Form including any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order Form or Hyland Experience Guide. Unless otherwise specified in an Order Form: (a) fees listed on a subscription basis will be invoiced annually in advance, (b) fees on a consumption basis will be calculated and invoiced monthly in arrears; and (c) fees for overages will be calculated and invoiced when incurred.
5.2 Renewals. Hyland may increase the annual fees for each renewal period by up to 10% of the previous year’s fees.
6 WARRANTIES AND AI DISCLAIMER
6.1 Hyland Experience Limited Warranty. Hyland warrants to Customer that (a) Hyland Experience will materially conform with the relevant Documentation; and (b) the security of Hyland Experience as described in the Hyland Experience Guide will not be materially decreased during the term of the Product Subscription.
6.2 Remedies. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland in this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of Hyland Experience, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practical, then terminate this Hx Schedule or the Agreement entirely (as the case may be) with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this Hx Schedule or the Agreement (as the case may be), Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid fees” shall mean an amount equal to the total fees paid by Customer for the non-conforming portion of Hyland Experience for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
6.3 Customer Limited Warranty. Customer warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use Hyland Experience in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with Hyland Experience, Support Services, or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and such submission does not violate any contracts, agreements, or any applicable law.
6.4 Artificial Intelligence. Hyland Experience may include artificial intelligence functionality that is designed to assist Customer with various tasks and processes. Such functionality is provided on an "as is" and "as available" basis and Hyland makes no representations or warranties of any kind, express or implied, as to the accuracy, reliability, or completeness of its output. Given the probabilistic nature of artificial intelligence technology, output generated and returned by such functionality may be incorrect and Hyland does not guarantee that the functionality will be error-free. Use of the artificial intelligence functionality is at Customer’s own risk and discretion. Customer is solely responsible to verify the accuracy and reliability of any output generated by the artificial intelligence functionality before making any decisions or taking any actions based on such output.
7 INDEMNIFICATION
7.1 By Customer. Customer will indemnify, defend and hold harmless Hyland and its affiliates from and against all liabilities, damages and costs and expenses, including reasonable attorneys’ fees, arising from or in connection with any third-party claim, action or proceeding instituted against Hyland based upon: (a) any Customer Data or third-party content provided by Customer and transmitted, stored, processed or used in Hyland Experience; or (b) Customer’s use of Hyland Experience in violation of this Agreement or laws, rules, or regulations applicable to Customer. Hyland will: (y) promptly notify Customer of any claim for which Hyland seeks indemnification; and (z) reasonably cooperate with Customer in defending and settling the claim.
7.2 By Hyland.
7.2.1 Intellectual Property. Hyland agrees to indemnify Customer from and against all: amounts awarded in, or paid in settlement of, and reasonable out-of-pocket expenses incurred in defending, any third-party judicial claim instituted against Customer stating, with specificity, that Customer’s use of Hyland Experience is the basis of the infringement or misappropriation of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of Hyland Experience or replace the alleged infringing portions of Hyland Experience with other equivalent, non-infringing alternatives so that it no longer infringes. If, in its reasonable opinion, Hyland is unable to achieve either option set forth in (d), Hyland may terminate this Agreement and Customer’s use of Hyland Experience upon thirty days advance written notice to Customer and refund to Customer a pro-rata refund of fees received by Hyland for the then current Product Subscription. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer to the extent that such claims arise from: (1) any Customer Data or third-party content; (2) use of Hyland Experience other than as expressly permitted by this Agreement; (3) the combination of Hyland Experience with any content, product, or service not furnished by Hyland; (4) the modification or addition of any component of Hyland Experience other than by Hyland or a contractor to Hyland specifically retained by Hyland to provide such modification or addition; or (5) Customer’s business methods or processes.
7.2.2 Sole and Exclusive. THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY BY HYLAND EXPERIENCE OR ANY COMPONENT THEREOF.
8 DATA EXTRACTION AND DELETION. For thirty days following termination or expiration of the Product Subscription, Hyland will make Customer Data available to Customer for export or download via the functionality in Hyland Experience as described in the Documentation. At the end of such thirty-day period, Hyland has no obligation to retain the Customer Data for Customer.
9 U.S. GOVERNMENT END USERS. If and only if Customer is the U.S. government, the terms and conditions of this Agreement shall pertain to the U.S. government’s use or disclosure of Hyland Experience or any of its components as Customer and shall supersede any conflicting contractual terms or conditions. As Customer, the U.S. government hereby agrees that all software include in Hyland Experience is computer software within the meaning of ALL federal acquisition regulation(s) applicable to this procurement and that such software is developed exclusively at private expense. If this right to use fails to meet the U.S. government’s needs or is inconsistent in any respect with federal law, the U.S. government agrees to cease using Hyland Experience. In addition to the foregoing, the rights of the US. Government to use, modify, reproduce, release, display or disclose Hyland Experience or any components thereof, including user documentation is subject solely to the terms of this Agreement, as stated in DFARS 227.7202, and the terms of this Agreement shall supersede any conflicting contractual terms or conditions
Hyland Company | Additional Terms Exhibit |
Hyland Software Brasil LTDA. | Exhibit A |
Hyland Software Germany GmbH | Exhibit B |
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
1. Section 4.3 (PRICES, INVOICES, AND PAYMENT; Renewals) of the Hx Schedule shall be replaced in its entirety as follows:
Customer shall pay fees to Hyland for Hyland Experience in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay fees to Hyland for Hyland Experience as initially composed in accordance with the initial Order Form. Hyland will adjust the fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds expands its use of Hyland Experience and such increased use requires the payment of additional fees, Hyland will invoice Customer for such use on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, fees relating to such additional use shall be included in the subsequent invoices issued with respect to Hyland Experience.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
- The last sentence of the No High Risk Use Section of the Hx Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s culpable breach of this Section with regard to the use of Hyland Experience in connection with any High Risk Use.
2. The following provision shall be added to the end of the WARRANTIES AND AI DISCLAIMER Section of the Hx Schedule:
Any statutory rights of Customer regarding any damages resulting from the breach of the above warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this Hx Schedule is excluded.
3. Section 7.1 and Section 7.2.2 of the Hx Schedule shall not apply.
[The most current version of this page shall be such in effect as of 11:59 p.m. ET of the date stamped on such online version.]
Effective April 19th 2024 to May 3rd 2024
DownloadTable of Contents
HYLAND EXPERIENCE SCHEDULE
This Hyland Experience Schedule (“Hx Schedule”) is part of the Hyland Master Agreement, Order Form or any other agreement or document between Customer and Hyland, which incorporates this Hx Schedule by reference (the “Incorporating Document”). As used herein, the “Agreement” means the Incorporating Document, inclusive of this Hx Schedule, and any other agreement within which the Incorporating Document is incorporated.
1. DEFINED TERMS.
All capitalized terms used in this Schedule shall have the meaning ascribed them in this Schedule or, if not defined in this Schedule, the General Terms Schedule. If any capitalized terms used herein are not defined in this Schedule or the General Terms Schedule, they shall have the meaning ascribed to them elsewhere in this Agreement. In the event the same defined term is defined in two or more Schedules, the term shall be given the meaning defined in each Schedule with respect to that Schedule, and, if the term is also used within this Schedule, this Schedule shall be interpreted to include all definitions, as the context requires.
“Customer Data” means all electronic data or information submitted by Customer or a User to Hyland Experience.
“Documentation” means the specifications, as published and periodically updated by Hyland, that describe the functionality of Hyland Experience.
“DPA” means the Global Data Processing Addendum, located at https://legal.hyland.com/Customer-Legal-Center#gdpr-customerdpa, which is fully incorporated herein by reference.
“Hyland Experience” means the Hyland Experience-branded cloud-based services made available by Hyland to Customer on a subscription basis, as further described in the Documentation, Hyland Experience Guide, and corresponding Order Form.
“Hyland Experience Guide” means the then-current additional commitments and obligations related to Hyland Experience made available by Hyland at https://legal.hyland.com/hyland-experience-guide (or at such other location provided by Hyland).
“Order Form” means unless otherwise defined in the General Terms Schedule, and as used in this Hx Schedule, an Incorporating Document (or a Purchase Table included in an Incorporating Document) identifying Hyland Experience, the associated fees, and other terms agreed to by the parties.
“Personal Data” if applicable, has the meaning set forth in the DPA.
“Support Services” means the technical support services described in the in the Hyland Experience Guide.
“Trial Services” means any Hyland product, service or functionality that may be made available by Hyland to Customer to try at Customer’s option, and which is designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “test” “evaluation,” or by a similar designation.
“Users” means: (a) employees of Customer and its Authorized Affiliate(s) that access and use Hyland Experience; and (b) any additional users to which Customer is authorized to provide access to Hyland Experience as expressly agreed in writing between the parties.
2 HYLAND EXPERIENCE
2.1 Provision of Hyland Experience.
2.1.1 In General. Hyland will make Hyland Experience available pursuant to this Agreement and the relevant Order Form during the term of the Product Subscription. Hyland grants to Customer a revocable, non-exclusive, non-assignable (except as provided in the General Terms Schedule), limited right to use Hyland Experience as provided by Hyland, and the associated Documentation, solely for use by Customer and its Users for the internal business purposes of Customer, and only for capturing, storing, processing and accessing Customer’s data.
2.1.2 Upgrades. Hyland may (a) implement upgrades (e.g. bug fixes and enhancements) to Hyland Experience, and (b) update the Documentation and Hyland Experience Guide accordingly. Upgrades to Hyland Experience that are made generally available to all subscribing customers will be made at no additional charge. New features and functionality added to Hyland Experience may be marketed separately by Hyland and may require the payment of additional fees.
2.2 Hyland Experience Guide.
2.2.1 In General. Hyland will provide Hyland Experience pursuant to the applicable portions of the then-current Hyland Experience Guide.
2.2.2 Updates. Hyland reserves the right to update the Hyland Experience Guide at its discretion, provided that such updates do not diminish or reduce the commitments in the Hyland Experience Guide as of the Effective Date. Such updates will be effective thirty days after being posted on the Hyland Experience Guide. Customer’s continued access or use of Hyland Experience constitutes Customer’s acceptance of such updates.
2.3 Trial Services. If Customer registers or accepts an invitation for Trial Services, including through Hyland’s websites, or executes an Order Form for the same, Hyland will make such Trial Services available to Customer on a trial basis, until the earlier of (a) the end of the trial period for which Customer registered to use the applicable Trial Services, or (b) the end date specified in the applicable Order Form. Trial Services are provided for evaluation purposes and not for production use. Customer shall have sole responsibility and Hyland assumes no liability for any Customer Data that Customer may choose to upload on the Trial Services. Trial Services may contain bugs or errors and may be subject to additional terms. TRIAL SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. Hyland may, in its sole discretion, discontinue Trial Services at any time. THE HYLAND EXPERIENCE GUIDE, INCLUDING HYLAND’S OBLIGATIONS STATED THEREIN, DOES NOT APPLY TO TRIAL SERVICES.
2.4 Third-Party Services and Content. Hyland Experience contains functionality which allows Customer to, utilize, link or integrate Hyland Experience with services from third parties and/or to access third-party websites and content. Hyland has no responsibility for such third-party services, websites or content and no obligations related to third-party service failures. Any activities engaged in by Customer with third parties using Hyland Experience is solely between Customer and the applicable third party. Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third-party web sites that may be linked through Hyland Experience. Hyland is not responsible for any third-party content that is processed, accessed or used by Customer via Hyland Experience.
2.5 Additional Terms. Certain functionality of Hyland Experience, including corresponding components that are downloaded or installed locally on Customer’s systems. Such functionality and components may be subject to additional terms and conditions included in the Hyland Experience Guide. Customer’s access to or use of such functionality constitutes acceptance of such additional terms and conditions.
3 DATA PRIVACY
3.1 Scope of Processing. Hyland will process Customer Data solely: (a) to provide Hyland Experience and Support Services, (b) to prevent or address service or technical issues; (c) as instructed by Customer via written notice or as initiated by a User via functionality provided within Hyland Experience; or (d) as otherwise set forth in this Agreement. To the extent that Hyland processes Personal Data on behalf of Customer to provide Hyland Experience and Support Services, then the parties shall comply with the DPA.
3.2 Compliance with Law. Hyland will comply with all laws applicable to its provision of Hyland Experience, including applicable security breach notification laws. Hyland is not responsible for compliance with any laws or regulations applicable to a Customer, Customer’s industry, Users, or Users’ industry that are not generally applicable to information technology services providers. Hyland only processes Customer Data in accordance with this Agreement and does not determine whether Customer Data is subject to any specific law or regulation.
3.3 Customer Data. As between Customer and Hyland, Customer is and will remain the owner of all Customer Data, including any intellectual property rights therein. Customer hereby grants Hyland, its affiliates, and its subcontractors all necessary rights and authority to host, use, process, store, display and transmit Customer Data as set forth in this Agreement and for Hyland to provide Hyland Experience in accordance with this Agreement or to the extent required by applicable laws, rules or regulations.
3.4 Account Information, Aggregated Data, and Usage Data. Hyland may collect and use Account Information, Aggregated Data, and Usage Data for its own business purposes including developing, training, or improving its products or services. Hyland may only share Account Information, Aggregated Data, or Usage Data with third parties: (a) when permitted by this Agreement; or (b) if such information is aggregated, de-identified, or anonymized in such a way that Customer and Users cannot be identified. Hyland’s use and collection of Aggregated Data and Usage Data can be disabled by Customer, except: (y) for information related to the calculation of Fees; and (z) for the use of certain Trial Services. Instructions on how to disable this collection of Aggregated Data and Usage Data is described in the Documentation. Certain functionality of Hyland Experience may not be available to Customer’s that disable the collection of Aggregated Data or Usage Data (e.g. analytics reporting). Account Information means Customer and User registration and billing data that is required for user set-up, use and billing. Aggregated Data means all statistical data that is aggregated, anonymized and derived from the use and operation of Hyland Experience, including without limitation, the number of records in Hyland Experience, the number and types of transactions, configurations, actions, and reports processed as part of Hyland Experience and the performance results of Hyland Experience. Usage Data means information and insights generated from Customer’s use of Hyland Experience and data related to Customer’s configuration of Hyland Experience. For clarity, Account Information, Aggregated Data, and Usage Data do not include Customer Data.
3.5 Feedback. Customer grants to Hyland and its affiliates a royalty-free, worldwide, perpetual, transferable, sub-licensable, and irrevocable license to incorporate into Hyland’s products or services any suggestions, enhancements, improvements, recommendations, or any other feedback provided by Customer, including Users.
4 CUSTOMER’S USE
4.1 Responsibilities.
4.1.1 In General. Customer will:
(a) use Hyland Experience in accordance with this Agreement, the Documentation, Hyland’s Acceptable Use Policy, and applicable laws and government regulations;
(b) be responsible for all Users use and all access through Customer and its Users of Hyland Experience and compliance with this Agreement, including, but not limited to, (1) setting-up User accounts (e.g., user names, passwords, tokens, etc.) to Hyland Experience and immediately revoking User accounts when a User no longer requires access to Hyland Experience, and (2) prohibiting Users from sharing log-in credentials;
(c) use reasonable efforts to prevent unauthorized access to or use of Hyland Experience;
(d) notify Hyland promptly of any unauthorized access or use of Hyland Experience of which it becomes aware;
(e) as between Hyland and Customer, be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer or User acquired Customer Data, and Customer’s and Users’ use of Customer Data with Hyland Experience;
(f) use available Hyland Experience security features and controls to properly transmit, store, process and provide access to Customer Data;
(g) use the tools and reporting capabilities made available in Hyland Experience to monitor and confirm Customer Data processing (e.g., electronic documents uploads); and
(h) designate its Customer Security Administrator. “Customer Security Administrators” (also referred to as “CSA” or “CSAs”) are individuals designated by Customer who are authorized to submit configuration change requests, speak authoritatively on behalf of Customer’s regarding Hyland Experience and shall receive and provide, as applicable, all notifications related to maintenance, security, service failures and the like. If Customer fails to designate the initial CSA, Hyland may at its option, designate the initial CSA as the individual who signed the Agreement on behalf of Customer.
4.1.2 Internet Connection. Customer is responsible for obtaining and maintaining all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use Hyland Experience.
4.1.3 Internal Administration by Customer. Customer may give any of its Users the ability, through the configuration tools included in Hyland Experience, to act as a system administrator. Customer is solely responsible for its internal management and administration of Customer’s instance of Hyland Experience.
4.1.4 Compliance with Laws. Customer has an independent duty to comply with all laws applicable to it. Customer’s use of Hyland Experience and compliance with any terms and conditions under this Agreement does not constitute compliance with any law.
4.2 Prohibited Acts.
4.2.1 Restrictions. Customer will not:
(a) license, sublicense, sell, resell, rent, lease, transfer, or distribute Hyland Experience, any Documentation or Hyland Experience Guide, or include Hyland Experience in any outsourced, service bureau or application service provider offering;
(b) make Hyland Experience available to anyone other than Customer or Customer’s Users
(c) use Hyland Experience for the benefit of anyone other than Customer, unless otherwise expressly stated in the Order Form or Documentation;
(d) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of Hyland Experience without advance written approval from Hyland;
(e) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile Hyland Experience or any part thereof or otherwise attempt to derive source code from, or modify Hyland Experience;
(f) disclose to any third party any benchmark or performance tests of Hyland Experience;
(g) make any use of Hyland Experience in any situation where failure of Hyland Experience could lead to death or serious injury or to severe physical or environmental damage;
(h) use Hyland Experience to create technology or software that is controlled under any relevant export control laws, rules or regulations; and
(i) use functionality included in Hyland Experience to, directly or indirectly, developer or improve a similar or competing product or service.
4.2.2 No High-Risk Use. Hyland Experience is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. Hyland Experience is not designed and not intended for use in any situation where failure or fault of any kind could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). Hyland Experience is not licensed by Hyland to use in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of Hyland Experience for administrative purposes, as an information resource for medical professionals, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control but must not be directly or indirectly responsible for the control function. Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer's or its contractors use of Hyland Experience in connection with any High Risk Use.
4.2.3 Components. All components of Hyland Experience including any components that are downloaded or installed locally on Customer’s systems, are solely for use with Hyland Experience and may not be used on a stand-alone basis.
4.3 Excessive Use.
4.3.1 Infrastructure. The physical infrastructure of Hyland Experience is provisioned to Customer based on Customer’s subscription. If Customer’s use of Hyland Experience exceeds the usage limits of Customer’s subscription (“Excessive Use”), then the speed, availability, or number of API requests that Customer may make of Hyland Experience may be impacted. Customer may upgrade its current tier or purchase additional usage at any time. HYLAND DISCLAIMS ANY RESPONSIBILITY FOR THE ISSUANCE OF CREDITS PER THE HYLAND EXPERIENCE SERVICE LEVELS THAT WOULD BE DUE AS A RESULT OF EXCESSIVE USE.
4.3.2 Tier-Based Licensing. Hyland Experience contains functionality which Customer may purchase on a tier or volume basis. Such functionality may: (a) no longer function if applicable limits have been exceeded; (b) require Customer to pay additional fees based on Customer’s usage; and (c) monitor or track Customer’s usage and report that usage. Customer may not circumvent or attempt to circumvent this restriction by any means.
4.3.3 Tier Increases. If Customer has licensed Hyland Experience on a tier-based subscription model (as indicated in the Order From) and exceeds the allotment for the applicable tier at any point during the term of the Product Subscription, then, at the next applicable renewal, Customer’s tier-based subscription will automatically increase to the next applicable tier.
4.4 Assessment. Hyland shall be permitted to assess Customer’s use of Hyland Experience to determine Customer’s compliance with the grant of use and pricing terms of the Agreement, including, where applicable, to measure Customer’s usage.
5 PRICES, INVOICES AND PAYMENT
5.1 Invoicing. Customer shall pay all fees in such amounts as specified in each Order Form including any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order Form or Hyland Experience Guide. Unless otherwise specified in an Order Form: (a) fees listed on a subscription basis will be invoiced annually in advance, (b) fees on a consumption basis will be calculated and invoiced monthly in arrears; and (c) fees for overages will be calculated and invoiced when incurred.
5.2 Renewals. Hyland may increase the annual fees for each renewal period by up to 10% of the previous year’s fees.
6 WARRANTIES AND AI DISCLAIMER
6.1 Hyland Experience Limited Warranty. Hyland warrants to Customer that (a) Hyland Experience will materially conform with the relevant Documentation; and (b) the security of Hyland Experience as described in the Hyland Experience Guide will not be materially decreased during the term of the Product Subscription.
6.2 Remedies. Hyland’s sole obligation, and Customer’s sole and exclusive remedy, for any non-conformities to the express limited warranties granted by Hyland in this Section shall be as follows: provided that Customer notifies Hyland in writing of the non-conformity, Hyland will either (a) correct the non-conforming component of Hyland Experience, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if Hyland determines that correcting the non-conformity is not practical, then terminate this Hx Schedule or the Agreement entirely (as the case may be) with respect to the non-conforming component, in which event, upon compliance by Customer with its obligations under this Hx Schedule or the Agreement (as the case may be), Hyland will refund or cause to be refunded to Customer the “unused portion of prepaid fees” (as defined below) paid by Customer and attributable to the non-conforming component. The “unused portion of the prepaid fees” shall mean an amount equal to the total fees paid by Customer for the non-conforming portion of Hyland Experience for the then current term (or applicable twelve-month period within the Initial Term) during which such removal occurs, multiplied by a fraction, the numerator of which shall be the number of full calendar months remaining during the term (or applicable twelve-month period within the Initial Term) during which such removal occurs, and the denominator of which shall be twelve (12).
6.3 Customer Limited Warranty. Customer warrants to Hyland that: (a) Customer and its Users are the legal custodian of the Customer Data and it has the right and authority to use Hyland Experience in connection with all Customer Data and other materials hereunder; (b) Customer will use reasonable efforts to ensure that any Customer Data submitted to Hyland will be free of viruses; and (c) anyone submitting Customer Data to Hyland for use in connection with Hyland Experience, Support Services, or Professional Services (if any) has the legal authority to do so, either through ownership of the Customer Data or by obtaining appropriate authorizations therefor, and such submission does not violate any contracts, agreements, or any applicable law.
6.4 Artificial Intelligence. Hyland Experience may include artificial intelligence functionality that is designed to assist Customer with various tasks and processes. Such functionality is provided on an "as is" and "as available" basis and Hyland makes no representations or warranties of any kind, express or implied, as to the accuracy, reliability, or completeness of its output. Given the probabilistic nature of artificial intelligence technology, output generated and returned by such functionality may be incorrect and Hyland does not guarantee that the functionality will be error-free. Use of the artificial intelligence functionality is at Customer’s own risk and discretion. Customer is solely responsible to verify the accuracy and reliability of any output generated by the artificial intelligence functionality before making any decisions or taking any actions based on such output.
7 INDEMNIFICATION
7.1 By Customer. Customer will indemnify, defend and hold harmless Hyland and its affiliates from and against all liabilities, damages and costs and expenses, including reasonable attorneys’ fees, arising from or in connection with any third-party claim, action or proceeding instituted against Hyland based upon: (a) any Customer Data or third-party content provided by Customer and transmitted, stored, processed or used in Hyland Experience; or (b) Customer’s use of Hyland Experience in violation of this Agreement or laws, rules, or regulations applicable to Customer. Hyland will: (y) promptly notify Customer of any claim for which Hyland seeks indemnification; and (z) reasonably cooperate with Customer in defending and settling the claim.
7.2 By Hyland.
7.2.1 Intellectual Property. Hyland agrees to indemnify Customer from and against all: amounts awarded in, or paid in settlement of, and reasonable out-of-pocket expenses incurred in defending, any third-party judicial claim instituted against Customer stating, with specificity, that Customer’s use of Hyland Experience is the basis of the infringement or misappropriation of any patent, registered copyright or registered trademark of a third party, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of Hyland Experience or replace the alleged infringing portions of Hyland Experience with other equivalent, non-infringing alternatives so that it no longer infringes. If, in its reasonable opinion, Hyland is unable to achieve either option set forth in (d), Hyland may terminate this Agreement and Customer’s use of Hyland Experience upon thirty days advance written notice to Customer and refund to Customer a pro-rata refund of fees received by Hyland for the then current Product Subscription. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer to the extent that such claims arise from: (1) any Customer Data or third-party content; (2) use of Hyland Experience other than as expressly permitted by this Agreement; (3) the combination of Hyland Experience with any content, product, or service not furnished by Hyland; (4) the modification or addition of any component of Hyland Experience other than by Hyland or a contractor to Hyland specifically retained by Hyland to provide such modification or addition; or (5) Customer’s business methods or processes.
7.2.2 Sole and Exclusive. THIS SECTION STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY BY HYLAND EXPERIENCE OR ANY COMPONENT THEREOF.
8 DATA EXTRACTION AND DELETION. For thirty days following termination or expiration of the Product Subscription, Hyland will make Customer Data available to Customer for export or download via the functionality in Hyland Experience as described in the Documentation. At the end of such thirty-day period, Hyland has no obligation to retain the Customer Data for Customer.
9 U.S. GOVERNMENT END USERS. If and only if Customer is the U.S. government, the terms and conditions of this Agreement shall pertain to the U.S. government’s use or disclosure of Hyland Experience or any of its components as Customer and shall supersede any conflicting contractual terms or conditions. As Customer, the U.S. government hereby agrees that all software include in Hyland Experience is computer software within the meaning of ALL federal acquisition regulation(s) applicable to this procurement and that such software is developed exclusively at private expense. If this right to use fails to meet the U.S. government’s needs or is inconsistent in any respect with federal law, the U.S. government agrees to cease using Hyland Experience. In addition to the foregoing, the rights of the US. Government to use, modify, reproduce, release, display or disclose Hyland Experience or any components thereof, including user documentation is subject solely to the terms of this Agreement, as stated in DFARS 227.7202, and the terms of this Agreement shall supersede any conflicting contractual terms or conditions
Exhibit A
Hyland Software Brasil LTDA Additional Terms Exhibit
If Hyland is Hyland Software Brasil LTDA this Exhibit A shall apply:
1. Section 4.3 (PRICES, INVOICES, AND PAYMENT; Renewals) of the Hx Schedule shall be replaced in its entirety as follows:
Customer shall pay fees to Hyland for Hyland Experience in such amounts as are invoiced by Hyland; provided, that during the first year of the Initial Term, Customer shall pay fees to Hyland for Hyland Experience as initially composed in accordance with the initial Order Form. Hyland will adjust the fees annually on each anniversary of the Effective Date by the last known accumulated value of IPCA at the time Hyland issues the invoice for fees. For all purposes, “IPCA” means the Índice de Preços para o Consumidor amplo, as measured by IBGE, or any index created to replace this index. Hyland will invoice Customer on or after the Effective Date for fees for the first year of the Initial Term. For any subsequent years, Hyland will invoice Customer for fees prior to the beginning of such year, and such invoice shall be due and payable by Customer to Hyland in full in accordance with the General Terms Schedule. In the event Customer adds expands its use of Hyland Experience and such increased use requires the payment of additional fees, Hyland will invoice Customer for such use on a prorated basis upon Hyland’s acceptance of the purchase order for such additional Software modules. Thereafter, fees relating to such additional use shall be included in the subsequent invoices issued with respect to Hyland Experience.
Exhibit B
Hyland Software Germany GmbH Additional Terms Exhibit
If Hyland is Hyland Software Germany GmbH this Exhibit B shall apply:
- The last sentence of the No High Risk Use Section of the Hx Schedule shall be replaced with the following:
Customer agrees to indemnify and hold harmless Hyland from any third-party claim arising out of Customer’s culpable breach of this Section with regard to the use of Hyland Experience in connection with any High Risk Use.
2. The following provision shall be added to the end of the WARRANTIES AND AI DISCLAIMER Section of the Hx Schedule:
Any statutory rights of Customer regarding any damages resulting from the breach of the above warranty shall remain unaffected subject to the express terms of the Agreement. Warranty for only insignificant reductions in the suitability of the performance is excluded. The strict liability according to Sec. 536a (1) of German Civil Code for defects that already existed at the time of conclusion of this Hx Schedule is excluded.
3. Section 7.1 and Section 7.2.2 of the Hx Schedule shall not apply.
[The most current version of this page shall be such in effect as of 11:59 p.m. ET of the date stamped on such online version.]
Success Paths Schedule
Effective April 30th 2024
DownloadTable of Contents
Success Path Services | Success Path | ||
Digital | Premier | Signature | |
Technical Support | |||
Initial Response Targets | N/A | Included | Included |
Issue Update Frequency | N/A | Included | Included |
Technical Account Manager (TAM) | N/A | Coaching only | Designated |
Education and Training | |||
Premium Subscription | N/A | Included | Included |
Training Discounts | N/A | 25% | 50% |
Hyland University Instructor Led Training | N/A | 2 | 4 |
CommunityLIVE General Conference Passes | N/A | 2 | 4 |
TechQuest Passes | N/A | 2 | 4 |
Expert Coaching
| N/A | Choose 2 | Choose 4 |
Digital | Premier | Signature | |
Initial Response Target | N/A | P1 and P2: 60 minutes* P3 and P4: 1 Business Day P5 and P6: 2 Business Days | P1 and P2: 30 minutes* P3 and P4: 1 Business Hour P5 and P6: 4 Business Hours |
Issue Update Frequency Target | N/A | P1 and P2: Hourly P3 - P6: 2 Business Days | P1 and P2: Conference bridge** P3 - P6: Business Daily |
Priority Level | Description | Hyland Response |
Level 1 (P1) | Total or substantial failure of the Hyland Solution. | Hyland will match Customer’s effort, up to and including 24-hour days, 7 days a week. |
Level 2 (P2) | All of Customer’s users are unable to access an entire portion of the Hyland Solution. | Hyland will match Customer’s effort, up to and including 24-hour days, 7 days a week. |
Level 3 (P3) | The Hyland Solution is usable except there is an ongoing, system-wide, severe performance degradation. | Hyland will match Customer’s efforts during Business Days, up to 16 hours/day. |
Level 4 (P4) | The Hyland Solution is usable except a specific feature or functionality is not working. | Hyland will use reasonable efforts during Business Hours. |
Level 5 (P5) | The Hyland Solution is usable except for a trivial inconvenience. | Hyland will use reasonable efforts during Business Hours. |
Level 6 (P6) | All other matters, including “how to” requests and questions about the Documentation. | Hyland will use reasonable efforts during Business Hours. |
Description | |
Initial Response Target | The timeframe within which Hyland will respond to Customer’s initial submission of a support case for technical support. |
Issue Update Frequency | The frequency with which Hyland will provide updates to Customer regarding the applicable support case for technical support. |
Technical Account Manager | The Technical Account Manager will:
|
Premium Subscription | Access to either: (a) Hyland’s on-demand Premium-based web learning content which can be used by anyone in Customer’s organization; or (b) Alfresco Passport for 3 users, as applicable based upon Customer’s Hyland Solution. |
Training Discounts | The discounts defined, based on corresponding Success Path purchased by Customer, on Hyland training courses (to the extent training courses are available for the Hyland Solution), which can be used at any time, for duration of the term of the Product Subscriptions. |
Hyland University Instructor Led Training | Hyland will provide the number of passes for Hyland University Instructor Led Training, based on the current Success Path purchased by Customer, once per year. |
CommunityLIVE General Conference Passes | Hyland will provide the number of passes for the CommunityLIVE General Conference, based on the current Success Path purchased by Customer, once per year. If the Effective Date of the Success Path Schedule is within 60 days of the CommunityLIVE General Conference, the passes will be for the next year’s conference. |
TechQuest Passes | Hyland will provide the number of passes for a Hyland TechQuest conference, based on the current Success Path purchased by Customer, once per twelve month-period. |
Expert Coaching | The expert coaching options identified in the list below (and defined within this Appendix 1) are available to Customer, based on the current Success Path purchased by Customer.
|
Strategic Governance Coaching | Examination and analysis of Customer’s content services. Strategic Governance Coaching includes the following six core components: Capture, Manage, Access, Integrate, Measure, and Store. Strategic Governance coaching also includes the following:
|
Platform Growth Coaching | Review of Customer’s current Hyland Solution with respect to overall platform growth. Platform Growth Coaching includes the following:
|
System Performance Coaching | Review and recommendations with respect to Customer’s overall system performance. System Performance Coaching includes the following:
|
Upgrade and Release Planning Coaching | Review and recommendations for evaluating the current Hyland Solution version deployment. Upgrade and Release Planning Coaching includes the following:
|
IAConnect AP Base Requirements Document
Effective May 8th 2023
DownloadTable of Contents
IAConnect AP Base Requirements Document
Requirement # | Functional Area | Functional Process | Full User Story Text | Completion Criteria | Additional Notes |
|---|---|---|---|---|---|
| AIP-CAP-001 | Capture | Invoice Import | AIP-CAP-001 - As the System I shall be able to process emailed invoices, so that the body of the email is saved as a supporting document. | 1. System checks for new emails with attachment(s) 2. System creates a new document in OnBase for each attachment | Assumes Mailbox Importer was purchased |
| AIP-CAP-002 | Capture | Invoice Import | AIP-CAP-002 - As the System I shall be able to process emailed invoices, so that so that file attachments are included as an invoice for payment. | 1. System checks for new emails with attachment(s) 2. System creates a supporting document out of the email body for the invoice attachment | Assumes Mailbox Importer was purchased |
| AIP-CAP-003 | Capture | Invoice Import | AIP-CAP-003 - As the AP User I shall be able to process emailed invoices, so that so that invoice attachments are QA'd for page order and invoice accuracy. | 1. AP Processor reviews batches in CPD and uses image correction and QA tools to modify as needed | |
| AIP-CAP-004 | Capture | Invoice Scanning | AIP-CAP-004 - As the AP Scanner I shall be able to scan invoice documents, so that hard copy invoices can be processed. | 1. AP Processor uses OnBase client to scan documents in using a local scanner 2. OnBase will ingest the document and send to CPD for Batch QA | |
| AIP-CAP-005 | Capture | Invoice Scanning | AIP-CAP-005 - As the AP Scanner I shall be able to Rescan pages, so that the documents accurate and acceptable for OCR processing. | 1. AP Processor reviews batches in CPD and uses image correction and QA tools to modify as needed | |
| AIP-CAP-006 | Capture | Invoice Scanning | AIP-CAP-006 - As the AP Scanner I shall be able to delete pages, so that the documents accurate and acceptable for OCR processing. | 1. AP Processor reviews batches in CPD and uses image correction and QA tools to modify as needed | |
| AIP-CAP-007 | Capture | Invoice Scanning | AIP-CAP-007 - As the AP Scanner I shall be able to rotate page images, so that the documents accurate and acceptable for OCR processing. | 1. AP Processor reviews batches in CPD and uses image correction and QA tools to modify as needed | |
| AIP-CAP-008 | Capture | Invoice Scanning | AIP-CAP-008 - As the AP Scanner I shall be able to reorder pages, so that the documents accurate and acceptable for OCR processing. | 1. AP Processor reviews batches in CPD and uses image correction and QA tools to modify as needed | |
| AIP-CAP-009 | Capture | Invoice Processing | AIP-CAP-009 - As the System I shall be able to prepare documents in one document batches, so that Brainware can OCR and Validate invoice data. . | 1. System imports new invoices as sent from OnBase 2. System creates one batch per invoice file | |
| AIP-CAP-010 | Capture | Invoice OCR | AIP-CAP-010 - As the System I shall be able to OCR and Extract header level fields for PO Invoices, so that data can be validated against ERP data. | 1. System performs OCR and extraction, and validates against ERP data source | |
| AIP-CAP-011 | Capture | Invoice OCR | AIP-CAP-011 - As the System I shall be able to OCR and Extract line level fields for PO Invoices, so that data can be validated against ERP data. | 1. System performs OCR and extraction, and validates against ERP data source | |
| AIP-CAP-012 | Capture | Invoice OCR | AIP-CAP-012 - As the System I shall be able to OCR and Extract header level fields for Non PO Invoices, so that data can be validated against ERP data. | 1. System performs OCR and extraction, and validates against ERP data source | |
| AIP-CAP-013 | Capture | Invoice Processing | AIP-CAP-013 - As the System I shall be able to Calculate the total miscellaneous amount across summary and line data, so that the total miscellaneous amount can be exported to OnBase at the summary level. | 1. System performs OCR and extraction, and performs calculation | |
| AIP-CAP-014 | Capture | Invoice Processing | AIP-CAP-014 - As the System I shall be able to Derive invoice values from the PO number, so that PO data captured from the invoice is verified against ERP data. | 1. System uses extracted invoice data and ERP data source to look up and validate related PO data | |
| AIP-CAP-015 | Capture | Invoice Processing | AIP-CAP-015 - As the System I shall be able to Derive vendor id and vendor site id from the remit information on the invoice, so that vendor data captured from the image is verified against ERP data. | 1. System uses extracted invoice data and ERP data source to look up and validate related vendor data | |
| AIP-CAP-016 | Capture | Invoice Processing | AIP-CAP-016 - As the System I shall be able to Derive PO line number from line item data, so that PO line data captured from the image is verified against ERP line data. | 1. System uses extracted invoice data and ERP data source to look up and validate related PO line data | |
| AIP-CAP-017 | Capture | Invoice OCR | AIP-CAP-017 - As the System I shall be able to Import OCR verified data and apply to the original document, so that data can be validated against ERP data. | 1. System imports data from OCR process and re-indexes document in OnBase 2. System then evaluates data and routes to destination in Workflow | |
| AIP-CAP-018 | Capture | Void Document Import | AIP-CAP-018 - As the System I shall be able to Evaluate void reasons, so that documents requiring separation are routed to a user for correction. | 1. System evaluates the Invalid Reason Code and routes to corresponding destination in Workflow | |
| AIP-CAP-019 | Capture | Void Document Import | AIP-CAP-019 - As the System I shall be able to Evaluate void reasons, so that documents requiring re-indexing to supporting documentation are automatically reindexed. | 1. System evaluates the Invalid Reason Code and routes to corresponding destination in Workflow | |
| AIP-CAP-020 | Capture | Void Document Import | AIP-CAP-020 - As the System I shall be able to Evaluate void reasons, so that document requiring deletion are automatically re-indexed as a AP - Deleted Document. | 1. System evaluates the Invalid Reason Code and routes to corresponding destination in Workflow | |
| AIP-CAP-021 | Capture | Vendor Lookup Resolution | AIP-CAP-021 - As the System I shall be able to Evaluate vendor issue reasons, so that Vendor data that is not able to be verified with the ERP during capture is routed to the Vendor Master team for review. | 1. System uses extracted invoice data and ERP data source to look up and validate related vendor data. 2. System routes invoices with a status of Vendor Not Found to the Vendor Master team. | |
| AIP-CAP-022 | Capture | Invoice Submission | AIP-CAP-022 - As the User I shall be able to Submit an invoice to a centralized email box, so that Invoices are properly routed for OCR image capture. | 1. Users shall be able to submit emails/attachments to a centralized mailbox to be set up by KBR. 2. Invoices are converted into TIFF format before routing for OCR. 2. Attachments are considered invoices and emails are considered supporting documents. 3. Invoices are routed for OCR Image capture within Brainware. | |
| AIP-MNG-023 | Manage | Invoice Processing | AIP-MNG-023 - As the System I shall be able to identify a duplicate invoice, so that suspected duplicates are routed for proper processing actions. | 1. System shall look at Vendor ID, Invoice Date, Invoice Amount, and Invoice Number to determine potential duplicate invoices. 2. System shall route potential duplicates to the Rejected Queue to await further action. 3. System prompts Accounting Representative with a messaging saying that the invoice is a possible duplicate | |
| AIP-MNG-024 | Manage | Invoice Processing | AIP-MNG-024 - As the AP Processor I shall be able to View other AP Processors assigned invoices, so that I can process invoices on behalf of the assigned user. | 1. The Accounting Representative clicks Queue Administration, then Show other user's documents. 2. The System displays a listing of Accounting Representatives. 3. The Accounting Representative selects the user they wish to process invoices on behalf of. | |
| AIP-MNG-025 | Manage | Invoice Processing | AIP-MNG-025 - As the AP Manager I shall be able to Reassign an invoice, so that an alternative AP Representative can process the invoice. | 1. The AP Manager clicks reassign invoice 2. The System displays a listing of AP Manager 3. The AP Manager chooses an alternative member 4. The invoice is reassigned to the alternative member of Accounts Payable | |
| AIP-MNG-026 | Manage | Invoice Processing | AIP-MNG-026 - As the System I shall be able to base Vendor Terms and Due Date off of Invoice Receipt Date, so that invoices may be processed with proper dates for visibility. | 1. System uses Invoice Receipt Date in place of Invoice Date to determine Due Date based off of Vendor Terms. | |
| AIP-MNG-027 | Manage | Invoice Processing | AIP-MNG-027 - As the AP Processor, or AP Manager I shall be able to place an invoice on hold, so that invoices that require additional information can be removed from the initial processing queue. | 1. AP Processor clicks the "Hold Invoice" Task 2. System asks for a hold reason. 3. Accounting Representative enters a Hold reason on a note. 4. AP Processor selects the date the invoice should be held until. 5. Invoice transitions to the Hold Queue | |
| AIP-MNG-028 | Manage | Invoice Processing | AIP-MNG-028 - As the AP Processor, or AP Manager I shall be able to remove an invoice from Hold, so that Invoice can be processed. | 1. AP Processor clicks the "Remove Hold" Ad Hoc Task 2. The Invoice transitions to the AP Initial Review Queue for processing. | |
| AIP-MNG-029 | Manage | Invoice Processing | AIP-MNG-029 - As the System I shall be able to notify an AP Processor, as well as the AP Manager of an invoice reaching its hold date, so that invoices placed on hold may begin reprocessing. | 1. System sends an email to the AP Processor who initiated the hold, on the date the invoice was denoted to be held until. | |
| AIP-MNG-030 | Manage | Invoice Processing | AIP-MNG-030 - As the AP Processor I shall be able to Reindex an invoice, so that invoices may be updated with proper information for processing. | 1. AP Processor clicks the "Index Invoice" task. 2. The System presents the IAConnect indexing form. 3. AP Processor has the ability to modify Invoice Header information in order for processing to continue. | |
| AIP-MNG-031 | Manage | Invoice Processing | AIP-MNG-031 - As the AP Processor I shall be able to GL Code an invoice, so that invoices may be updated with proper coding information for processing. | 1. AP Processor Clicks the "GL Coding" task. 2. The System presents the IAConnect GL Coding form. 3. AP Processor has the ability to modify Invoice Line information in order for processing to continue. | |
| AIP-MNG-032 | Manage | Invoice Processing | AIP-MNG-032 - As the AP Processor, or AP Manager I shall be able to reject an invoice, so that invoices which do should not be processed are removed from the workflow. | 1. AP Processor Clicks the "Reject Invoice" ad hoc task 2. System prompts the AP Processor with a pre-defined list 3. AP Processor chooses a rejection reason 4. System prompts the AP Processor with a note asking for further detail (if necessary) 5. Invoice transitions to the rejected queue | |
| AIP-MNG-033 | Manage | Invoice Processing | AIP-MNG-033 - As the AP Processor, or AP Manager I shall be able to route an invoice to a selected Buyer, POC, Vendor Maintenance team, or AP Manager, so that invoices which do should not be processed are removed from the workflow. | 1. AP Processor Clicks the "Route To" ad hoc task. 2. System prompts the AP Processor with a pre-defined list of locations available for routing. 3. AP Processor chooses a specific user for review (if Buyer or POC) 4. System prompts the AP Processor with a note asking for the reason for routing. 5. Invoice transitions to the selected queue. | |
| AIP-MNG-034 | Manage | Invoice Processing | AIP-MNG-034 - As the AP Processor, Buyer, POC, Vendor Maintenance User, AP Manager, or Approver I shall be able to attach supporting documents, so that invoices have proper supporting documentation for processing to continue. | 1. AP Processor Clicks the "Add Supporting Document" ad hoc task 2. System prompts the AP Processor with a document import view. 3. AP Processor selects the file to import. 4. AP Processor clicks the ok button to finalize the import. | |
| AIP-MNG-035 | Manage | Invoice Processing | AIP-MNG-035 - As the AP Manager I shall be able to remove an invoice from processing, so that invalid or rejected invoices are archived and not paid. | 1. AP Manager clicks the Remove from Processing ad hoc task. 2. System removes the invoice from workflow processing. 3. System stores the rejected invoice as a separate document type (AP - Rejected Invoice) | |
| AIP-MNG-036 | Manage | Invoice Processing | AIP-MNG-036 - As the Buyer, POC/Requestor, Vendor Maintenance User, or Approver I shall be able to return an invoice to AP Review, so that AP Processors have the ability to continue processing on invoices or make corrections before continuing. | 1. User clicks the "Return To AP" ad hoc task. 2. System prompts the user with a reason for the return. 3. System prompts the user for a note explaining why they are returning the invoice. 4. System routes the invoice for AP Review. | |
| AIP-MNG-037 | Manage | Invoice Processing | AIP-MNG-037 - As the System I shall be able to Prevent invoices from being release for approval without GL Coding, so that invoices are properly allocated with GL Information. | 1. Accounting Representative clicks the submit for approval ad hoc task 2. System verifies that GL Coding Total is equal to invoice total 3. System prompts Accounting Representative with a message stating that GL Coding must be completed. | Item is configurable in IAConnect |
| AIP-MNG-038 | Manage | Invoice Processing | AIP-MNG-038 - As the System I shall be able to evaluate PO Invoice Total to be within 10% of the PO Total, so that PO Invoices are properly validated to be within tolerance for processing. | 1. System performs the tolerance check upon ingestion. 2. System applies a note to the invoice for AP Review. | Percentage is configurable. Please note percentage or dollar amount is a header value |
| AIP-MNG-039 | Manage | Invoice Processing | AIP-MNG-039 - As the System I shall be able to Check 2/3 Way matching based on Accepted Quantity, so that invoices are checked for amount and quantity matching before routing for approval. | 1. System performs the 2/3 Way match check when an invoice is routed for approval, as well as during import to Costpoint. The 3 way match is based on Accepted Quantity in Costpoint. 2. If a mismatch is identified, the invoice is routed for Buyer review in the appropriate Mismatch Identification queues | IAConnect can match on accepted or received quantity |
| AIP-MNG-040 | Manage | Invoice Processing | AIP-MNG-040 - As the System I shall be able to send an email notification, so that Buyers, POC's/Requestors, or the Vendor Maintenance team are notified of work assigned to them. | 1. System sends an email to the Buyers, POC's/Requestors, or the Vendor Maintenance assigned for an invoice when items arrive for their review. | |
| AIP-MNG-041 | Manage | Invoice Processing | AIP-MNG-041 - As the System I shall be able to Route an invoice for approval, so that business approval rules are applied to an invoice. | 1. System checks the invoice for keywords which require/do not require approval. 2. System auto-approves invoices which do not require approval. 3. System routes items requiring approval to the proper approvers. | |
| AIP-MNG-042 | Manage | Invoice Processing | AIP-MNG-042 - As the Approver I shall be able to review GL coding of an invoice, so that GL information is properly reviewed before approval. | 1. Approver clicks the Review GL Coding ad hoc task. 2. System displays the GL Coding interface as read only. | |
| AIP-MNG-043 | Manage | Invoice Processing | AIP-MNG-043 - As the Approver I shall be able to approve an invoice, so that invoice can be paid . | 1. Approver clicks the Approve ad hoc task 2. System records the approver, date, and time 3. System transitions the invoice to the Final Review Queue | |
| AIP-MNG-044 | Manage | Invoice Processing | AIP-MNG-044 - As the Approver I shall be able to reject an invoice, so that invoices will be given proper reasons for rejection of payment. | 1. Approver clicks the Reject ad hoc task 2. System records the approver, date, and time 3. System prompts the Approver for a rejection reason. 4. System prompts the Approver for a note explaining further detail (if necessary) | |
| AIP-MNG-045 | Manage | Invoice Processing | AIP-MNG-045 - As the Approver I shall be able to request hold with AP, so that invoices may be placed on hold. | 1. Approver clicks the Request Hold ad hoc task. 2. System prompts the Approver for a note explaining why they are requesting the hold, as well as the requested hold date. 3. System routes the invoice to AP Review, notifying the AP Processor that a hold has been requested. | |
| AIP-MNG-046 | Manage | Invoice Processing | AIP-MNG-046 - As the Approver I shall be able to return an invoice to the previous approval level, so that the current approver can return items to a previous approver if need be. | 1. Approver clicks the Return to Previous Level task. | |
| AIP-MNG-047 | Manage | Invoice Processing | AIP-MNG-047 - As the Approver I shall be able to add an approver, so that proper approvers may be added to an invoice's approval path. | 1. Approver clicks the Replace/Add Approver ad hoc task 2. System records the approver, date, and time 3. System prompts the approver for the additional approver to add to the invoice | |
| AIP-MNG-048 | Manage | Invoice Processing | AIP-MNG-048 - As the Approver, Administrator I shall be able to replace an approver, so that invoice can be processed. | 1. Approver clicks the Replace/Add Approver ad hoc task 2. System records the approver, date, and time 3. System prompts the approver for the replacement approver to add to the invoice 4. System removes the Approver from the invoice's approval path 5. System sends a notification to the new approver. | |
| AIP-MNG-049 | Manage | Invoice Processing | AIP-MNG-049 - As the System I shall be able to send email notifications, so that approvers are notified in alignment with KBR business approval rules. | 1. System sends an email notification to the assigned approver. | |
| AIP-INT-050 | Integrate | Invoice Processing | AIP-INT-050 - As the System I shall be able to import invoice vouchers into Costpoint, so that vouchers may be paid. | 1. System applies the most recent Fiscal Year, Period, and Subperiod to the invoice. 2. System determines whether to submit an AP or PO voucher. 3. System attempts to import the voucher into Costpoint via the Web Integration Console. | |
| AIP-MNG-051 | Manage | Invoice Processing | AIP-MNG-051 - As the System I shall be able to route successful voucher imports to a holding queue, so that payment information may be written to vouchers. | 1. System checks that the voucher import was successful. 2. System routes the invoice to a successful release queue. | |
| AIP-MNG-052 | Manage | Invoice Processing | AIP-MNG-052 - As the System I shall be able to route unsuccessful voucher imports to an exceptions queue, so that exceptions may be handled and the invoice may be re-imported to Costpoint. | 1. System checks that the voucher import was unsuccessful. 2. System routes the invoice to an import process exceptions queue. | |
| AIP-MNG-053 | Manage | Invoice Processing | AIP-MNG-053 - As the AP Processor, or System Administrator I shall be able to review vouchers which encountered import exceptions, so that exceptions may be handled and the invoice may be re-imported to Costpoint. | 1. User is able to review the error message from Costpoint using the Message Viewer ad hoc task. | |
| AIP-MNG-054 | Manage | Invoice Processing | AIP-MNG-054 - As the AP Processor, or System Administrator I shall be able to route unsuccessful voucher imports for re-import, so that the invoice may be re-imported to Costpoint. | 1. User clicks on the Re-import Voucher ad hoc task. 2. System routes the invoice for re-import. | |
| AIP-MNG-055 | Manage | Invoice Processing | AIP-MNG-055 - As the AP Processor, or System Administrator I shall be able to review GL coding of an invoice, so that GL information may be reviewed. | 1. User clicks the Restart Process ad hoc task. 2. System prompts the user for a note explaining why reprocessing is occurring. 3. System clears approval information. 4. System routes the invoice for AP Review. | |
| AIP-MNG-056 | Manage | Invoice Processing | AIP-MNG-056 - As the AP Processor, or System Administrator I shall be able to restart processing for an invoice, so that invoices may be properly reprocessed in the case where it is necessary. | 1. User clicks the Review GL Coding ad hoc task. 2. System displays the GL Coding interface as read only. | |
| AIP-ACC-057 | Access | Authentication | AIP-ACC-057 - As the OnBase User I shall be able to log into the OnBase client, so that without entering my password. | 1. User will open OnBase client | |
| AIP-RTR-058 | Retrieve | Invoice Research | AIP-RTR-058 - As the AP User I shall be able to Search for invoices, so that documents can be found using header level fields. | 1. User will access the Search & Retrieval functionality within the OnBase client | |
| AIP-INT-059 | Integrate | Post to ERP | AIP-INT-059 - As the System I shall be able to query Costpoint for payment data, so that invoices are updated with payment details and removed from workflow. | 1. Payment information for vouchers is queried nightly from Costpoint. 2. Vouchers which have received payment information from Costpoint will be removed from processing | Payment information is considered to be Check Number, Check Date, and Check Amount. |
VPConnect Base Solution Requirements Document
Effective June 5th 2024
DownloadTable of Contents
| User Case # | Functional Area | Functional Process | Full User Story Text | Completion Criteria | Additional Notes |
| VP-ACC-1 | Access | Access | 1 - As the VPConnect Admin, I shall be able to add a new VPConnect Admin, so that multiple people can be assigned as VPConnect administrators.. | VPConnect Admin logs in to VPConnect and has access to applicable menu items | |
| VP-ACC-2 | Access | Access | 2 - As the VPConnect Admin, I shall be able to add a new Vendor Admin, so that the Vendor Admin is assigned to the applicable Costpoint Vendor IDs. | Vendor Admin received an email notification with initial password. Vendor Admin logs in to VPConnect and has access to applicable menu items and vendor IDs | |
| VP-MNG-3 | Manage | Input | 3 - As the Vendor Admin, I shall be able to submit an invoice for Labor (in summary; detail by day is not required), so that the invoice is for a valid PO Labor line item. | the invoice is available in IAConnect for processing | |
| VP-MNG-4 | Manage | Input | 4 - As the Vendor Admin, I shall be able to submit an invoice for Travel expenses (in summary), so that the invoice is for a valid PO Travel expense line item. | the invoice is available in IAConnect for processing | |
| VP-MNG-5 | Manage | Input | 5 - As the Vendor Admin, I shall be able to submit an invoice for ODC (in summary), so that the invoice is for a valid PO ODC line item. | the invoice is available in IAConnect for processing | |
| VP-RTR-6 | Retrieve | Input | 6 - As the Vendor Admin, I shall be able to lookup the employee by name, so that the Vendor Admin does not need to know the employee ID. | the Costpoint employee id is populated on the labor, travel or ODC invoice line item | |
| VP-MNG-7 | Manage | Input | 7 - As the Vendor Admin, I shall be able to enter a labor invoice for a generic employee name, so that Serco does not have to maintain all subcontract vendor employee records in the system. | ||
| VP-MNG-8 | Manage | Input | 8 - As the Vendor Admin, I shall be able to Upload a PO invoice, so that the invoice is for a valid PO for the vendor. | the invoice is available in IAConnect for processing | |
| VP-MNG-9 | Manage | Input | 9 - As the Vendor Admin, I shall be able to Upload a non-PO invoice, so that Invoice data will be entered with or without a Project Number and the invoice will be uploaded to IAConnect.. | the invoice is available in IAConnect for processing | |
| VP-MNG-10 | Manage | Input | 10 - As the System, I shall be able to Set the vendor invoice date and invoice receipt date to the date vendor submits invoice , so that Date vendor submits invoice will be the vendor invoice date and invoice receipt date. | Date vendor submits invoice will be the vendor invoice date and invoice receipt date | |
| VP-INT-11 | Integrate | Input | 11 - As the System, I shall be able to Display a Customer Specific portal name as the application name., so that Vendors have a visual representation of the Customer's Vendor Portal. | "Serco Supplier Portal" is the name displayed to vendors. | |
| VP-MNG-12 | Manage | Notify | 12 - As the System, I shall be able to Email notifications sent to Vendor Admins, so that Vendor Admins receive email notification as listed in the notifications tab.. | Email received by the Vendor Admin. | |
| VP-MNG-13 | Manage | Notify | 13 - As the System, I shall be able to send reject notification to the vendor after it AP has reviewed and removed the invoice from processing, so that vendor does not receive a reject notification prematurely. | the vendor admin receives an email notification identifying the invoice and the reason it was rejected. | |
| VP-MNG-14 | Manage | Input | 14 - As the System, I shall be able to Import vendor admin data from a file, so that Bulk load of vendor admins rather than manual entry.. | Vendor Admins are able to login | • The tool does not import a middle initial. • The tool does not import a phone number. • The imported record can only be associated with one vendor ID. • No email is sent to the users once the user account is created. |
| VP-MNG-15 | Manage | Input | 15 - As the Vendor Admin, I shall be able to attach supporting documents for the invoice, so that one or more supporting documents are attached to the submitted invoice. | AP staff or approvers can view the supporting data for the invoice | |
| VP-RTR-16 | Retrieve | 16 - As the Vendor Admin, I shall be able to Inquire the payment status of an invoice, so that the Vendor Admin knows the payment status of an invoice in Serco.. | the invoice status within IAConnect and Costpoint is displayed to the Vendor. | ||
| VP-MNG-17 | Manage | Notify | 17 - As the Vendor Admin, I shall be able to know when an invoice is rejected, so that the Vendor Admin is notified that an invoice is rejected. | the vendor admin receives an email notification identifying the invoice and the reason it was rejected. | |
| VP-MNG-18 | Manage | Notify | 18 - As the System, I shall be able to sends a notification to the Buyer when an invoice is rejected, so that the Buyer can take appropriate Acton. | the buyer receives an email notification identifying the invoice and the reason it was rejected. | |
| VP-RTR-19 | Retrieve | 19 - As the Vendor Admin, I shall be able to query the Purchase Order(s), so that the Vendor Admin is able to determine if funds are available on the PO to invoice.. | a listing is displayed of a purchase order with their status and the funds remaining by line. |
Managed GovCloud Platform Schedule
Effective June 29th 2024
DownloadTable of Contents
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Managed GovCloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software, these GovCloud Schedule terms do not apply to such On-Premise Software.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc. (2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment. |
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
| Service Class | Multiplier |
|---|---|
| Silver | 1 |
| Gold | 2 |
| Platinum | 3 |
| Double Platinum | 4 |
12. COMPLIANCE WITH LAWS.Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
| Hyland Company | Additional Terms Exhibit |
|---|---|
| Hyland Software Brasil Ltda. | Exhibit A |
| Hyland Software Germany GmbH | Exhibit B |
Effective June 6th 2024 to June 29th 2024
DownloadTable of Contents
“Customer Data Incident” means an unauthorized disclosure of Customer Data resulting from Hyland’s failure to comply with the Control Families (as described in the Certified TX-Ramp Requirements) which are applicable to the Certified TX-Ramp Requirements. Without limitation, Customer Data Incident does not include any of the following that results in no unauthorized access to Customer Data or to any Hyland’s systems storing Customer Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; or (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers)
1.4 Hyland customers may license some Software provisioned by Hyland as part of the Hyland Cloud Service, and other Software which is implemented only on the customer’s premise (or a third party cloud other than the Hyland Managed GovCloud Platform), such as Hyland RPA (“On-Premise Software”). For clarity, if Customer licenses On-Premise Software, these GovCloud Schedule terms do not apply to such On-Premise Software.
(1) Customer Reporting Requirements. When requesting Hyland Cloud Service Support, Customer will submit such requests through Hyland’s secure end user website, the details of which will be separately provided to Customer. Once such request is submitted through the end user website, Customer may call for a Level 1 or Level 2 Severity Level (support numbers are available through Hyland’s secure end user website). In the case of reporting a problem, issue, or error with the Hyland Cloud Service, Customer will provide Hyland with as much information and access to systems as reasonably possible to enable Hyland to investigate and attempt to identify and verify the problem, issue or error. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed. Customer will notify Hyland of any configuration changes it has made to the Hyland Cloud Service, such as workflow configuration changes, network installation/expansion, integrations, upgrades, relocations, etc. (2) Hyland Response Procedures. Hyland shall respond to all reports in accordance with the Support Prioritization Attachment. Hyland: (a) will respond based on the confirmed severity level; (b) may reclassify severity levels as it learns information about such problems, issues or errors during the resolution process; and (c) obligations for a reported issue or error concludes upon delivery of a Resolution in accordance with the Support Prioritization Attachment. |
(b) Customer will comply with Hyland’s Acceptable Use Policy, as in effect from time to time, a copy of the current form of which is attached hereto as the Acceptable Use Policy Attachment;
(c) Customer is responsible for all Users use and all access through Customer and its Users of the Hyland Cloud Service and compliance with the Agreement, including, but not limited to, (i) setting-up User log-in accounts/credentials (e.g. user names, passwords, tokens, etc.) to the Hyland Cloud Service and immediately revoking User accounts/credentials when User no longer requires access to the Hyland Cloud Service, and (ii) shall not permit Users to share log-in accounts/credentials;
(d) Customer has sole responsibility for the accuracy, quality, content and legality of all Customer Data;
(e) Customer shall prohibit unauthorized access to, or use of, the Hyland Cloud Service and shall notify Hyland promptly of any such unauthorized access or use by contacting Customer’s Hyland technical support contact or another contact notified to Customer in writing (which may be via email or posted on Hyland’s secure end user web site (currently www.hyland.com/community)).
(f) Customer understands and agrees: (i) it has an independent duty to comply with any and all laws applicable to it, (ii) its use of the Hyland Cloud Service and compliance with any terms and conditions under the Agreement does not constitute compliance with any law, (iii) it shall make use of available Hyland Cloud Service security features and controls to properly transmit, store, process and provide access to Customer Data and (iv) it shall use the tools and reporting capabilities made available in the Hyland Cloud Service to monitor and confirm Customer Data processing, such as batch processing of electronic documents uploaded to the Hyland Cloud Service.
| Service Class | Multiplier |
|---|---|
| Silver | 1 |
| Gold | 2 |
| Platinum | 3 |
| Double Platinum | 4 |
12. COMPLIANCE WITH LAWS.Subject to the Term and Termination provisions, Hyland agrees to comply in all material respects with all laws applicable to Hyland in its performance of services under the Agreement.
| Hyland Company | Additional Terms Exhibit |
|---|---|
| Hyland Software Brasil Ltda. | Exhibit A |
| Hyland Software Germany GmbH | Exhibit B |