Software Subscription and AI License Terms

These Software Subscription and AI License Terms ("Subscription Terms") govern Buyer’s subscription to use any Subscription Software ("Subscription Software") licensed by ibml under the Agreement, including access to and implementation of artificial intelligence (AI) features, machine learning model training, and related data usage and licensing rights, and constitute a binding contract between Buyer and ibml. Buyer’s use of any Subscription Software is at all times subject to the terms and conditions outlined in these Subscription Terms, which incorporate by reference all other terms and conditions governing Buyer’s use of the Products, as described in the Contract Terms.

 

1. License; Additional Services.

1. 1. License Grant. The Subscription Software installed on the Equipment is the property of ibml and is protected by copyright and other intellectual property laws. Subject to and conditioned on Buyer’s payment of the subscription fee for the Subscription Software described in the Product Specification (the "Subscription Fee"), ibml hereby grants Buyer, exercisable by and through its Authorized Users, during the Subscription Period, a non-exclusive, non-sublicensable, and non-transferable (except as expressly authorized or permitted by the terms of the Agreement) (i) right to use the Subscription Software, including any updates, bug fixes, patches, or other error corrections to the Subscription Software that ibml provides to Buyer pursuant to this Agreement, solely for Buyer’s internal business purposes, including for submitting AI Customer Input to and receiving AI Customer Output from the AI Features and otherwise Processing Buyer Data; and (ii) right to use and make a reasonable number of copies of the Documentation solely for Buyer’s internal business purposes in connection with Buyer’s use of the Subscription Software. Buyer may make one copy of the Subscription Software solely for back-up, disaster recovery, and testing purposes. Any such copy of the Subscription Software: (x) remains ibml’s exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
   2. Use Restrictions. Buyer shall not use the Subscription Software or Documentation for any purposes beyond the scope of the License granted in these Subscription Terms. Without limiting the foregoing and except as otherwise expressly set forth in these Subscription Terms, Buyer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Subscription Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Subscription Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode or adapt the Subscription Software, reproduce Training Data (other than Buyer Data), engage in model extraction, or otherwise attempt to derive or gain access to the source code, algorithm, model, model weights and parameters, or underlying AI Features or component of the Subscription Software, in whole or in part; (iv) access or use the Subscription Software or any AI Customer Output to develop, train, or improve any other AI Features; (v) remove any proprietary notices from the Subscription Software or the Documentation; (vi) use the Subscription Software to create or generate AI Customer Output, or use AI Customer Output in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   3. Usage Data. Notwithstanding anything to the contrary in this Agreement, ibml may monitor Buyer’s use of the Subscription Software and collect and compile Usage Data to be used by ibml in an aggregated and anonymized manner. As between ibml and Buyer, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained by ibml. Buyer agrees that ibml may use and make publicly available Usage Data to the extent and in the manner permitted under applicable law; provided that such Usage Data does not identify Buyer or Buyer’s Confidential Information.
   4. Reservation of Rights. ibml reserves all rights not expressly granted to Buyer in these Subscription Terms. Except for the limited rights and licenses expressly granted under these Subscription Terms, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Buyer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP or Third-Party Products.
   5. Artificial Intelligence Terms.
      1. Open Source Components. ibml shall not include in the Subscription Software, and operation and use of the Subscription Software in accordance with the Documentation shall not require the use of, any Open Source Components, other than those Open Source Components specifically described in the Third Party Technology Specifications, as updated from time to time by ibml in writing, and for which the relevant open source license(s) (each, an "Open Source License") are included in the Third Party Technology Specifications. ibml shall provide Buyer with a complete, machine-readable copy of the source code for any such Open Source Components in accordance with the terms of their Open Source Licenses at no cost to Buyer.
      2. Software. For purposes of these Subscription Terms, all references to "Software" in the Agreement shall include the suite of on-premise Subscription Software and the AI Features that enables the automated recognition, classification and extraction of content from documents for purposes of downstream workflow integration, or for further processing as described in the applicable Third Party Technology Specifications.
      3. License. For purposes of these Subscription Terms, all references to "License" in the Agreement shall include the subscription-based software license granted under and subject to these Subscription Terms.
      4. Module. For purposes of these Subscription Terms, all references to "Module" or "Modules" in the Agreement shall include these Subscription Terms.
      5. Support Services. For purposes of these Subscription Terms, all references to "Support Services" and "Software Support Services" in the Agreement shall include the Software Support Services described in these Subscription Terms.
      6. Third-Party Software. For purposes of these Subscription Terms, all references to "Third-Party Software" in the Agreement shall include Third-Party Products.
      7. Definitions.
         1. "AI Customer Input" means information, data, materials, text, prompts, images, works, code, or other content that is (1) input, entered, posted, uploaded, submitted, transferred, or otherwise transmitted by or on behalf of Buyer or any other Authorized User through an AI Feature, or (2) collected, downloaded, or otherwise received by an AI Feature for or on behalf of Buyer or any Authorized User, including in the case of (1) and (2) for purposes of fine-tuning, grounding, or otherwise modifying, refining, adapting, or customizing an AI Feature by, for, or on behalf of Buyer.
         2. "AI Customer Output" means information, data, materials, text, images, code, works, or other content generated by or otherwise output from use of an AI Feature in response to an AI Customer Input or from use of an AI Feature by or on behalf of Buyer or its Authorized Users.
         3. "AI Feature" means any feature, functionality, or component of the Subscription Software that incorporates, uses, depends on, or employs any of ibml’s proprietary or third-party AI technology, including any and all machine learning, deep learning, models (including large language models), neural networks, and other artificial intelligence tools or methodologies.
         4. "Buyer Data" means information, data, and other content, in any form or medium, that is submitted, entered, posted, or otherwise transmitted by or on behalf of Buyer or any other Authorized User through an AI Feature, and any outputs based thereon or derived therefrom, including AI Customer Input, AI Customer Output, and Usage Data.
         5. "Open Source Components" means any software component that is subject to any open source copyright license agreement, including software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
         6. "Process" means to take any action or perform any operation or set of operations on any data, information, material, work, expression, or other content, including to (1) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative works, (2) process, weigh, perform statistical analysis, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or (3) block, erase, or destroy. "Processing" and "Processed" have correlative meanings.
         7. "Provider IP" means the Subscription Software, the Documentation, and all intellectual property provided to Buyer or any other Authorized User in connection with the foregoing, including intellectual property rights in AI Features. For the avoidance of doubt, Provider IP includes any information, data, or other content derived from ibml’s monitoring of Buyer’s use of the Subscription Software, including Usage Data, but does not include Buyer Data. Provider IP includes all modifications, enhancements, refinements, adaptations, customizations, improvements, and derivative works of the Subscription Software.
         8.  "Third-Party Products" means any products, technology, content, data, services, information, websites, or other materials that are owned by third parties and are included in, incorporated into, or accessible through the Subscription Software, including any third-party AI Features.
         9. "Third Party Technology Specifications" means written specifications that are subject to this Agreement, provided to Buyer by ibml from time to time, describing any Open Source Components used in connection with the Subscription Software, and shall include a copy of any Open Source License.
         10. "Training Data" means any and all information, data, materials, text, prompts, images, code, and other content that is used to train, validate, test, retrain, or improve any AI Features incorporated into or used with, in connection with, or in support of, the Subscription Software.
         11. "Usage Data" means anonymized and aggregated data related to Buyer’s and its Authorized Users' access to or use of the Subscription Software including, without limitation, technical logs, performance and operational metrics, patterns of interaction related to Buyer’s and its Authorized Users’ access and use of the Subscription Software, and image counts.

2) Buyer Responsibilities.

1. Use. Buyer is responsible and liable for all uses of the Subscription Software and Documentation resulting from access provided by Buyer, directly or indirectly, whether such access or use is permitted by or in violation of these Subscription Terms. Without limiting the generality of the foregoing, Buyer is responsible for all acts and omissions of any of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Subscription Terms if taken by Buyer will be deemed a breach of these Subscription Terms by Buyer. Buyer shall take reasonable efforts to make all Authorized Users aware of these Subscription Terms as applicable to such Authorized User's use of the Subscription Software and shall cause Authorized Users to comply with such terms.
2. Subscription Fees. Buyer shall pay ibml a Subscription Fee for each Subscription Software License.
3. Use of AI Customer Output. Buyer is solely responsible for (i) evaluating (including by human review) AI Customer Output for accuracy, completeness, and other factors relevant to Buyer’s use before using, distributing, or relying on the AI Customer Output and (ii) Buyer’s decisions, actions, and omissions in reliance or based on the AI Customer Output.
4. Third-Party Products. The Subscription Software may permit access to Third-Party Products. For purposes of this Agreement, these Third-Party Products are subject to their own terms and conditions which may be presented to you for acceptance by website link or otherwise. The Subscription Software may also include or incorporate Third-Party Products licensed or provided by third parties that require us to pass through additional terms to Buyer. Buyer shall comply with all such applicable pass-through terms as made available to Buyer, through Documentation, or otherwise, as such terms may be updated, modified, or added from time to time. ibml may add or remove Third-Party Products from time to time. If Buyer does not agree to abide by the applicable terms for any Third-Party Products, then Buyer should not install, access, or use these Third-Party Products or the Subscription Software. ibml shall secure, at its sole cost and expense, all rights, licenses, consents, approvals, and authorizations necessary for Buyer to use all Third-Party Products as incorporated in or otherwise used in conjunction with the Subscription Software and fully exercise Buyer’s rights, licenses, and obligations under this Agreement. All royalties, license fees, or other consideration payable in respect of such licenses are included in the Subscription Fee.

 

3. Maintenance Releases. During the Subscription Period, ibml shall provide Buyer, at no additional charge, with all Maintenance Releases, each of which will constitute the Subscription Software and be subject to the terms and conditions of this Agreement. For purposes of these Subscription Terms, (a) "Maintenance Release" means any update, upgrade, release, or other adaptation or modification of the Subscription Software, including any updated Documentation, that ibml may generally provide to its licensees from time to time during the Subscription Period, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Subscription Software, and includes any New Version; and (b) "New Version" means any new version of the Subscription Software that ibml may from time to time introduce and market generally as a distinct licensed product, as may be indicated by ibml's designation of a new version number.
   
   
4. Inspection. Upon written request, ibml, at its expense, may enter the premises of Buyer during the normal business hours of Buyer for the purpose of examining compliance by Buyer with these Subscription Terms. Buyer shall use reasonable efforts to assist ibml in any such inspection activities.
   
   
5. Buyer Data.
   1. Buyer shall own all rights, title, and interest in the Training Data provided by Buyer and Buyer Data and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality.
   2. Buyer shall retain all rights, title, and interest to the Training Data used for the purpose of training or improving machine learning models supported by the AI Features incorporated into the Subscription Software.
   3. All machine learning model training or tuning performed using the Subscription Software shall occur solely within the Buyer’s on-premises environment on designated infrastructure supported by ibml.
   4. Buyer shall assume responsibility for AI Customer Output generated from the Buyer’s use of the AI Features supported by the Subscription Software.
   5. Buyer shall ensure that the relevant third parties have been informed of, and have given their consent to, the use of Training Data for training and fine tuning the machine learning models supported by the AI Features supported by the Subscription Software.
   6. Subject to the terms and conditions in these Subscription Terms, Buyer may grant ibml a limited right to use Buyer’s Training Data for the sole purpose of optimizing the outputs of AI Features, providing technical support, system diagnostics, bug resolution, and performance troubleshooting.
   7. Access to Buyer’s Training Data shall be restricted to only those ibml personnel whose duties justify their need to access such Training Data, who have been informed by ibml of their obligation to maintain the confidential status of such Training Data, and who are subject to confidentiality duties or obligations that are intended to safeguard the confidentiality and security of Buyer’s Training Data.
   8. As agreed upon by the Parties in writing, Buyer may grant ibml the right to use the Training Data for purposes of developing, training, or improving any of ibml’s proprietary AI Features.
      
      
6. Intellectual Property Ownership; Feedback.
   1. Intellectual Property Ownership.
      1. Buyer acknowledges that, as between Buyer and ibml, ibml owns all right, title, and interest, including all intellectual property rights, in and to Provider IP and, for Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. ibml hereby grants Buyer a non-exclusive, royalty-free, limited, worldwide license to reproduce, distribute, and otherwise use and display the Provider IP solely to the extent incorporated into and necessary for Buyer to use and otherwise exploit the AI Customer Output solely for Buyer’s internal business operations by Authorized Users in accordance with the terms and conditions herein.
      2. In the event that ibml incorporates Buyer Data into ibml’s Training Data pipeline, ibml retains ownership of its AI model architecture, code, and weights (including any enhancements or improvements made through lawful training), except to the extent that custom models are designated in writing as owned by Buyer, or trained models incorporate Buyer’s proprietary or copyrighted content in a way that necessitates joint ownership or exclusive licensing.
      3. For the avoidance of doubt, (A) Buyer does not acquire any rights, express or implied, in the AI Features supported by the Subscription Software, and Buyer has no right to commercialize or transfer the Subscription Software, in whole or in part; and (B) nothing in these Subscription Terms shall be construed as granting Buyer any ownership interest in ibml’s pre-trained models, training pipelines, or copyrighted materials, except as expressly provided herein.
   2. Buyer Data. ibml acknowledges that, as between ibml and Buyer, Buyer owns all right, title, and interest, including all intellectual property rights, in and to the Training Data provided by Buyer and Buyer Data, except as set forth herein with respect to Provider IP incorporated into AI Customer Output and subject to the license granted herein. Buyer hereby grants to ibml a non-exclusive, royalty-free, worldwide license to use, modify, and adapt only aggregated and anonymized AI Customer Input and AI Customer Output to train, develop, adapt, modify, enhance, or improve the AI Features.
   3. Open Source Components. Ownership of all Open Source Components, and all intellectual property rights therein, is and will remain with the respective owners thereof, subject to Buyer’s rights under the applicable Open Source Licenses. Any use of the Open Source Components by Buyer will be governed by, and subject to, the terms and conditions of the applicable Open Source Licenses.
   4. Feedback. If Buyer or any of its employees or contractors sends or transmits any Feedback to ibml by mail, email, telephone, or otherwise, ibml is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. All Feedback is and will be treated as non-confidential. Buyer hereby assigns to ibml on Buyer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and ibml is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although ibml has no obligation to acknowledge receipt of or use any Feedback.

 

7. ibml Warranty.
   1. ibml represents and warrants that all data, materials, and content used to train the AI Features supported by the Subscription Software foundational, pre-trained, or fine-tuned AI models are (i) owned by ibml; (ii) properly licensed from third parties under valid and enforceable agreements; or (iii) in the public domain or otherwise used in a manner that does not infringe upon any third-party intellectual property rights.
   2. Where ibml uses third-party content or datasets for model training, ibml will: (i) maintain documentation of all licensing arrangements, permissions, or rights-of-use agreements; (ii) use commercially reasonable efforts to ensure that any such content is used in accordance with license scope; and (iii) avoid using copyrighted works that prohibit use for data mining or AI training under applicable legal frameworks.

 

8. Buyer Warranty. Buyer represents, warrants, and covenants that it owns or otherwise has and will have all necessary rights, permissions, and consents in and relating to the Buyer Data so that, as received by ibml and Processed in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights of any third party or violate any applicable law.

 

9. Buyer Indemnification. Notwithstanding any in addition to those terms set forth in the General Terms, Buyer shall indemnify, hold harmless, and, at ibml's option, defend ibml Indemnitees from and against any and all Losses arising from or relating to any Third-Party Claim (a) that any Buyer Data, the AI Customer Input, or Processing or any other use thereof of either Buyer Data or AI Customer Input in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; or (b) arising out of occurring in connection with unauthorized use or disclosure of Training Data in breach of these Subscription Terms.

 

10. ibml Indemnification. Notwithstanding any in addition to those terms set forth in the General Terms, ibml’s obligation to indemnify Buyer for an Infringement Claim will not apply to the extent that the alleged Infringement Claim arises from: (a) AI Customer Input; (b) Buyer’s disablement or circumvention of any applicable source citation, filtering, or safety tools or functions of the AI Features; or (c) Buyer’s Training Data or AI Customer Output.

 

11. Subscription Period; Termination.

1. Except as otherwise agreed upon by the Parties in writing, the initial term of the License begins on the date set forth in the applicable Product Specification and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for the subscription period set forth in the Product Specification (the "Initial Subscription Period"). At the end of the Initial Subscription Period, the License will automatically renew for successive renewal terms equal to twelve (12) months unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a "Renewal Subscription Period" and together with the Initial Subscription Period, the "Subscription Period").

2. The License granted hereunder is a subscription-based software license that is sold by ibml in annual increments and subject to term and volume-based usage limits. As set forth in the applicable Product Specification, Buyer will purchase an annual subscription based on the number of Images that Buyer estimates, in good faith, will be processed using the Subscription Software (the "Volume Limit") during a twelve (12) month period    (each, a "Measurement Period"). If Buyer reaches the Volume Limit prior to expiration of the then-current Measurement Period, Buyer shall be required to purchase additional usage rights in an amount sufficient to satisfy Buyer’s processing needs and in accordance with ibml’s then current pricing policy. For the avoidance of doubt, if Buyer’s processing of Images using the Subscription Software does not reach the Volume Limit during the first Measurement Period any such unused portion of the Volume Limit shall be carried forward for use during the second Measurement Period  . Following expiration of the second Measurement Period, any such unused portion of the Volume Limit will expire and will not be eligible to be carried forward to any subsequent Measurement Period. By way of example, if Buyer’s processing of Images using the Subscription Software does not reach the Volume Limit during the second Measurement Period, any such unused portion of the Volume Limit will expire and will not be eligible to be carried forward to the third Measurement Period.

3. In addition to any other express termination right set forth in this Agreement:
   1. ibml may terminate the License, effective on written notice to Buyer, if Buyer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Buyer’s receipt of written notice of nonpayment; or (B) breaches any of the Use Restrictions set forth in these Subscription Terms;
   2. either Party may terminate the License, effective on written notice to the other Party, if the other Party breaches these Subscription Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
   3. either Party may terminate the License, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4. Upon any expiration or termination of this License: (i) Buyer will immediately cease using the Subscription Software and delete, destroy, or return all copies of the Subscription Software and the Documentation and certify in writing to ibml that the Subscription Software and the Documentation has been deleted or destroyed; and (ii) ibml will immediately cease providing any of the maintenance and support services described in these Subscription Terms to Buyer. No expiration or termination will affect Buyer’s obligation to pay the Subscription Fee that may have become due before such expiration or termination, or entitle Buyer to any refund. For the avoidance of doubt, ibml will not maintain any Buyer Data under this Agreement and, therefore, will have no obligation to delete, destroy, or return any Buyer Data to Buyer.
5. If, prior to expiration of the Initial Subscription Period, this License is terminated by (i) Buyer for any reason other than for cause or (ii) ibml for cause, then Buyer shall pay to ibml an amount equal to the unamortized costs of any non-cancellable obligations incurred by ibml in accordance with the grant of this License to Buyer (e.g., fixed costs for server usage, unamortized costs of professional services, etc.), which fee the Parties agree is reasonable and appropriate to cover those non-cancellable obligations ibml incurred in connection with the grant of this License to Buyer and is not a penalty.

12. Invoice and Payment.

1. The Subscription Fee shall be due and payable in advance commencing on the first day of the Initial Subscription Period and, subject to renewal in accordance with the terms of the Agreement, annually thereafter. Buyer’s right to use the Subscription Software and receive the Software Support Services specified in these Subscription Terms is contingent on the timely payment of the Subscription Fee. In the event Buyer fails to pay the Subscription Fee when due, ibml may, in its sole discretion, suspend or terminate the use of the Subscription Software in accordance with the terms of the Agreement, including these Subscription Terms.
2. The Subscription Fee shall not be increased during the Initial Subscription Period. Thereafter, ibml reserves the right, upon ninety (90) days prior written notice, to increase the Subscription Fee in accordance with its standard pricing policies.
3. The Subscription Fee is payable without any set-off, offset, abatement, or deduction whatsoever.

 

13. Export Regulation. The Subscription Software may be subject to certain export control laws, including the US Export Administration Act and its associated regulations. Buyer shall not, directly or indirectly, export, re-export, or release the Subscription Software to, or make the Subscription Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Buyer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Subscription Software available outside the US.
    
    
14. Maintenance and Support Services. During the Subscription Period, ibml will provide Buyer with the Software Support Services specified in the Profile and described hereinbelow. The provision of the Software Support Services shall terminate automatically, effective immediately, upon the expiration or earlier termination of the Subscription Period.

1. Software Subscriptions; Software Support Services.
   1. Supported Software Services. The following describes the Software Support Services that are provided by ibml during the Subscription Period. Supported Software is eligible for subscription services and remedial support as described hereinbelow. Limited Support Software is only eligible for limited support as described hereinbelow.
      1. Subscription Services: During the Subscription Period, ibml will give Buyer written notice as to Maintenance Releases available to Buyer under the Agreement. Such notice may be given via a posted message on ibml’s support website (https://customers.ibml.com) as opposed to a personalized letter. Buyer shall be responsible for the installation of Maintenance Releases. For the avoidance of doubt, Software Support Services excludes any election by Buyer to upgrade or replace the standard operating system software utilized by ibml with the Equipment (each, a "Voluntary OS Upgrade"), and such Voluntary OS Upgrades do not constitute Maintenance Releases for purposes of these Software Support Services. In the event Buyer requests ibml to install Maintenance Releases, such installation services shall be chargeable to Buyer at ibml’s then current rates for hourly service, plus any travel and living expenses associated with such installation services. ibml’s notice will specify the revision level of Limited Support Software that must be used in conjunction with the Maintenance Release. Buyer shall be responsible for obtaining the revision level of Limited Support Software specified. ibml will continue to support the prior revision level of Supported Software for the period stated in the notice to Buyer. Buyer’s failure to utilize the latest supported revision level(s) or to utilize a temporary solution provided by ibml at its option, shall relieve ibml of its obligation to provide support to resolve problems which would have been corrected by use of the designated revision level or temporary solution.
      2. Remedial Support Services: If Supported Software fails to operate substantially as described in the then current Documentation for the Subscription Software, Buyer shall report the problem to ibml. Remedial services will consist of ibml’s verification of the problem’s existence, and a determination of the conditions under which the problem may reoccur. After such verification and determination, ibml will provide, at its option, one of the following: (1) a temporary solution for the problem, or (2) a correction of the problem in the next revision level of the Supported Software.
      3. Limited Support Software: Limited Support Software is either software obtained from third parties and remarketed by ibml, or software for which only limited support services are available. ibml will provide telephone support to answer operational questions as to the manner in which the Limited Support Software interfaces with the Supported Software. In the event Buyer believes that Limited Support Software is not operating substantially as described in the then current documentation for the Limited Support Software, Buyer shall report the problem to ibml. ibml’s Software Support Services in such instances will be limited to verifying the problem’s existence and either reporting the problem to the supplier of the Limited Support Software or referring Buyer directly to the supplier of the Limited Support Software for further technical assistance in resolving the problem.
   2. Custom Software Support Services. Custom Software is provided for use with specific release levels of ibml-developed and/or Third-Party Products (if applicable). Upon expiration of any warranty period specified by ibml for the Custom Software, ibml shall make available Software Support Services for Buyer to order on a time and materials basis. Except as otherwise agreed in writing between Buyer and ibml, any requested changes to Custom Software after the initial delivery and acceptance of the Custom Software are subject to additional charges.
   3. Support Availability. The Software Principal Period of Support ("SPPS") is defined as telephone or e-mail support during the hours of 8:00 a.m. to 5:00 p.m. (Central time) Monday through Friday, excluding holidays observed by ibml. System software technical support services will be provided to Buyer by ibml Software Technical Support staff via telephone or e-mail. The phone number for ibml Software Technical Support is 1-866-798-4265. The e-mail address is support@ibml.com. If Buyer requests a SPPS any part of which is outside the hours of 8:00 a.m. to 5:00 p.m. (Central time), Buyer will be subject to additional maintenance and support charges (other than the Subscription Fee) to be determined in accordance with ibml’s then current pricing policy for after hours, weekend and holiday support. Buyer may change its designated SPPS at the beginning of any calendar month by giving ibml at least thirty (30) days prior written notice and obtaining agreement by ibml for such change in Buyer’s SPPS. Support other than telephone or e-mail support, support requested by Buyer outside Buyer's designated SPPS, or on-site support will be billed to Buyer in accordance with ibml’s then current time and material rates and policies for after hours, weekend or holiday support. In the case of on-site support, Buyer shall be responsible for reimbursing ibml for all reasonable travel and living expenses incurred by ibml’s support personnel in conjunction with the delivery of such support.
   4. ibml will not be responsible for maintaining or supporting any portion of the Subscription Software that has been modified by Buyer or for performing any Voluntary OS Upgrades.
   5. Corrections made by ibml for difficulties or defects traceable to Buyer error or system changes will be billed at ibml's then current standard time and materials rates.
   6. Buyer agrees, if requested by ibml, to provide ibml with reasonable support and test time on Buyer’s computer system to replicate the problem, certify that the problem is related to the Supported Software, and determine that the problem has been corrected. If Buyer does not provide such support and test time on Buyer’s computer system, ibml will only be responsible for using its best efforts to resolve the problem.
      
      
2. Extended Coverage.
   1. The Subscription Fee covers Software Support Services during the SPPS for the Subscription Software. If Buyer requests ibml to perform Subscription Support Services outside the SPPS or at Buyer’s premises, such Subscription Support Services shall be subject to ibml's then current hourly rates for each service call.
   2. Buyer may contract for extended hours of Software Support Services ("SPPS Shift Extension") outside the SPPS (subject to availability) on Monday through Friday, and shall pay a surcharge as specified in the Profile. In addition, Buyer may contract for SPPS Shift Extensions to obtain Software Support Services on Saturday and/or Sunday (where available) and shall pay a surcharge as specified in the Profile.
   3. The following conditions apply to all SPPS Shift Extensions requested by Buyer:
      1. SPPS Shift Extensions must be contiguous to the SPPS. SPPS Shift Extension hours selected on Monday through Friday shall be the same each day, and hours selected for Saturdays and/or Sundays shall be the same hours for all Saturdays and/or Sundays.
      2. At least ninety (90) days prior written notice is required from Buyer to commence SPPS Shift Extensions.
      3. SPPS Shift Extensions must be contracted for a minimum period of six (6) months unless otherwise agreed to in writing between Buyer and ibml. If Buyer terminates a SPPS Shift Extension before the six (6)-month period expires, Buyer shall be responsible for payment of SPPS Shift Extension charges for the balance of the six (6)-month minimum SPPS Shift Extension period.
      4. All requests for SPPS Shift Extensions are subject to acceptance and approval by ibml.
   4. The Software Support Services furnished by ibml outside the SPPS or outside contracted SPPS Shift Extensions are not covered by the Subscription Fee and shall be subject to ibml's then current hourly rates for each service call. The hourly charge(s) shall apply to the time spent on-site and the travel time to and from the Subscription Software location or time spent on remote diagnostics or telephone support for the Subscription Software with a minimum charge for services of two (2) hours on weekdays and three (3) hours on weekends or ibml observed holidays.
      
      
3. Special Services. In the event Buyer orders special maintenance and/or support services for the Subscription Software by designating such services in the Profile, the corresponding Additional Terms, as referenced in the Profile, are incorporated herein by reference.
   
   
4. Conditions.
   1. Buyer shall ensure that, during the Subscription Period, the environmental conditions under which the Subscription Software is installed and used shall continue to conform to those set forth in the installation instructions and specifications provided by ibml when the Subscription Software was installed. Buyer shall be responsible for ensuring the proper use, management and supervision of the Subscription Software by properly trained personnel. Buyer shall not perform maintenance on the Subscription Software without ibml's written authorization.
   2. The Subscription Fee does not cover the following: (A) changes or alterations in specifications; (B) reinstallation of the Subscription Software; and (C) repairs made necessary by accident, misuse, fault or negligence of Buyer, its employees, agents, contractors or invitees. If such services are ordered and provided by ibml, Buyer shall pay for such services in accordance with ibml’s then current rates and terms and conditions for time and materials service.
   3. The Parties agree that ibml will provide remote diagnostic service for the Subscription Software maintained under these Subscription Terms. In connection therewith, Buyer shall provide ibml remote access to the Subscription Software via remote access technology which is approved by Buyer. ibml’s access to Buyer’s information technology ("IT") systems shall comply with all Buyer IT system access and security policies and procedures communicated by Buyer to ibml. Buyer shall have the right to restrict ibml's remote access to Buyer’s IT systems at any time. Buyer’s decision to restrict ibml’s remote access to Buyer’s IT systems will affect and diminish ibml’s ability to provide the Subscription Support Services in a timely manner but shall not affect or diminish ibml's support responsibilities under these Subscription Terms.
      
      
5. Invoice and Payment.
   1. Maintenance and support charges, plus applicable surcharges (if any) as specified in the Profile, for any additional Software Support Services requested by Buyer and not covered by the Subscription Fee shall be due and payable in advance. Charges for a partial period of Software Support Services shall be prorated at 1/22^nd of the calculated monthly service or support rate per day.
   2. Notwithstanding the foregoing, ibml reserves the right to additionally charge Buyer for services which may be required due to: (A) Buyer's non-compliance with any or all laws relating in any way to the use or operation of the Subscription Software, or (B) Buyer's alterations, modifications, or attachments to the Subscription Software. In addition, should any alteration, modification or attachments to the Subscription Software interfere with the normal and satisfactory operation or maintenance of any component of the Subscription Software or create a safety hazard, Buyer shall, upon written notice from ibml to that effect, and within five (5) business days from its receipt of such notice, remove the alteration, modification, or attachment and restore the Subscription Software to its original configuration. In no event shall Buyer use the Subscription Software for any other purpose than that for which it was designed. Notwithstanding anything to the contrary contained herein, failure of Buyer to agree to the charges imposed by ibml pursuant to items (A) and (B) above, or failure to comply with ibml's instructions relative to safety standards for the use of the Subscription Software may, at ibml’s sole discretion, result in the cancellation by ibml of the Software Support Services provided under these Subscription Terms.

 

 

[END OF SUBSCRIPTION TERMS]