|
h. If, during the Term of this Agreement, Innovative discontinues any Software, then Innovative will deliver to
<br /> Client notice to such effect no less than twelve(12) months prior to the discontinuation of such Software and Client's
<br /> annual Fees will be decreased a pro-rated amount equal to the annual line item Fees for that Software starting in
<br /> the next years'annual invoice.
<br /> 2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the Software,
<br /> in its preconfigured, out-of-the box format,to Client(i)via the Internet, if Client has purchased hosting services from
<br /> Innovative pursuant to the Hosting Terms or(ii) by making it available to Client to download via an FTP site or other
<br /> mutually agreed upon method, if Client has not purchased hosting services from Innovative pursuant to the Hosting
<br /> Terms. Client will be deemed to have accepted that the out-of-the box Software has been delivered upon initial
<br /> download or receipt.
<br /> 3. Ownership.
<br /> a. All Intellectual Property Rights (defined below) in the Software and also including, without limitation, all
<br /> improvements, enhancements, modifications, Client-specific upgrades, or updates to the Software, developed by
<br /> either party, solely or jointly (collectively, "Innovative Products"), will remain the exclusive, sole and absolute
<br /> property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative
<br /> Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request
<br /> or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual
<br /> property rights existing from time to time under any law or regulation, including without limitation, patent law,
<br /> copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair
<br /> competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all
<br /> applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect
<br /> worldwide. Client hereby assigns to Innovative all right,title and interest in any feedback and suggestions it provides
<br /> to Innovative regarding the Software or other products commercialized by Innovative now or in the future. This
<br /> Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual
<br /> Property Rights, but only a limited right to use the Software to the extent set forth in this Agreement, which right is
<br /> terminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions,
<br /> and requirements contained herein. If Client configures or otherwise modifies the Software using an API licensed
<br /> hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the
<br /> terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by Innovative.
<br /> b. For purpose of this Agreement, as between Innovative and Client, any Intellectual Property Rights in the
<br /> Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third
<br /> party.The Software may include third-party software and products,which are described in the documentation and/or
<br /> Specifications made available to Client by Innovative, and any third-party pass-through terms relating to such third-
<br /> party software and products are identified therein (or by other mode of disclosure).
<br /> c. Except as expressly stated herein, Client will exclusively have and retain all right,title and interest, including
<br /> all associated Intellectual Property Rights, in and to data that Client enters into the Software or disclosed by Client
<br /> to Innovative in its performance hereunder("Client Data"), and, as between Client and Innovative, such Client Data
<br /> will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i)to process
<br /> the Client Data pursuant to Client's business requirements, (ii)for maintenance and support of the Software, (iii)to
<br /> collect and use aggregate, non-identifying and anonymized data, and (iv)for research and development purposes.
<br /> Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative
<br /> or its affiliates that use any of the Client Data in the manner set forth in (iii)or(iv) of the preceding sentence. To the
<br /> extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of
<br /> Client Data to Innovative (including without limitation from individuals to whom the data pertains), Client warrants
<br /> and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or
<br /> authorizations prior to transmitting such data to Innovative. Client will defend, indemnify and hold harmless
<br /> Innovative in the event of any third-party claim arising from a breach of the aforesaid warranty and covenant.
<br /> 4. Fees; Expenses; Payment Terms.
<br /> a. In consideration of receiving a limited license to use the Software, Client will pay the fees set forth in the
<br /> Pricing Exhibit to the License Agreement (the "Fees") on the terms set forth therein. Initial invoicing under this
<br /> Agreement will occur when the Software is initially delivered to Client per Section 2; subsequent renewal invoices
<br /> will be sent to Client prior to the date such payment is due. Invoices for any Renewal Terms may be provided to
<br /> Page 7 of 17
<br />
|