Terms and Conditions
PLEASE READ THIS AGREEMENT BEFORE USING DAVISWARE’S SOFTWARE OR SERVICES. BY ACCESSING OR USING DAVISWARE’S BUSINESS MANAGEMENT SOFTWARE OR SERVICES OFFERING, YOU (THE “CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE OR SERVICES.
DAVISWARE MASTER LICENSE AGREEMENT
This Master Agreement (the “Agreement”), is entered into between Davisware, LLC, a Delaware limited liability company located at 514 Market Loop, Suite 111, West Dundee, Illinois 60118 (“Davisware”) and Customer. This Agreement takes effect when Customer executes the Order Form or, if earlier, when Customer first uses or accesses the Software (the “Effective Date”). Davisware and Customer are collectively referred to as the “Parties” and individually as a “Party” in this Agreement.
Recitals. Davisware is the owner of certain proprietary business management software made available in either a downloadable version or on a software-as-a-service basis. Davisware desires to provide Customer access and Customer desires access to the Software on the following terms.
NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth below, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which consideration is hereby accepted and acknowledged, the Parties, intending to be legally bound, agree as follows.
(a) “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Software and, if applicable, the Subscription Services under the rights granted to Customer pursuant to this Agreement.
(b) “Documentation” means Davisware’s standard and then current training materials, user manuals, handbooks, guides, and technical specifications for the Software provided or made available by Davisware and as specified on the applicable Order Form.
(c) “Fees” has the meaning set forth in the Order Form and Section 5(a) hereof.
(d) “Implementation Services” means the standard and then current scope of Software implementation services provided by Davisware to Customer as referred to in Section 7(b) and the applicable Order Form.
(e) “Increase in CPI” means the unadjusted percentage increase, if any, in the Consumer Price Index for All Urban Consumers: U.S. City Average, All Items (“CPI-U”) for the month of the Effective Date when compared to the CPI-U for the corresponding month for the preceding calendar year, based upon the specific CPI-U data published by the United States Bureau of Labor Statistics (“BLS”) on its website located at https://www.bls.gov/cpi/ (or any BLS successor website).
(f) “Location” means the physical premises of Customer at which the Software will be downloaded and used, as set forth in an applicable Order Form.
(g) “Order Form” means the Davisware order form executed by the Parties that sets forth certain information including the Customer name and contact information, Subscription Services (if applicable), Perpetual Software (if applicable), fees, payment information, term, and such other terms and conditions, attached hereto and incorporated herein by this reference, and which shall be subject to and governed by the terms and conditions of this Agreement.
(h) “Perpetual Software” means the object code version of the Software made available in a downloadable, on premise format, as described in Section 2(a) hereof and the Documentation, and as identified on the applicable Order Form.
(i) “Professional Services” means the consulting and professional services provided by Davisware to Customer as referenced in Section 7(c), the applicable Order Form, and the applicable Statement of Work.
(j) “Software” means the then-current version (inclusive of any Updates, Upgrades, or modifications thereto) of those object code versions of those computer program modules and accompanying graphical user interfaces made available by Davisware under this Agreement and as described in the Documentation and identified on the applicable Order Form.
(k) “Statement of Work” or (“SOW”) means a document executed by the Parties that provides a description of a given project’s requirements, including the scope of work being provided, project deliverables, timelines, work location, and Fees.
(l) “Subscription Services” means the subscription-based services that enable the Customer’s access and use the Software pursuant to Section 2(b) hereof via a Davisware controlled access website hosted by Davisware or its services provider and as more specifically described in the Documentation.
(m) “Support Services” means Davisware’s standard and then current maintenance and support services it provides for the Software, as more specifically set forth in Exhibit A (Support and Maintenance Services).
(n) “Term” and any renewal rights of this Agreement has the meaning set forth in Section 11(a) and the applicable Order Form.
(o) “Third Party Services” means a third party (non-Davisware) product, software or service that interoperates with the Software or Subscription Services and that Customer, or its Authorized Users may access in connection with using the Software or Subscription Services, including by way of example and not limitation, payment processing services.
(p) “Updates” means: (i) any Software enhancement, modification or error correction which Davisware elects to make generally available to its customers; or (ii) a subsequent release of Subscription Services which Davisware generally makes available at no additional fee. Updates for Subscription Services automatically replace the previous version of the Subscription Services. For all Davisware Products, updates do not include new or separate products which Davisware offers only for an additional fee to its customers generally Davisware releases commercially and as determined by Davisware in its sole discretion.
(q) “Upgrades” means a new version of the Software that offers a significant change or major improvement over the current version of the Software and as determined by Davisware in its sole discretion.
- LICENSE; ACCESS AND USE; INTELLECTUAL PROPERTY OWNERSHIP AND RIGHTS; FEEDBACK
(a) Perpetual License Grant. If the Software is Perpetual Software as set forth in an Order Form, then subject to and conditioned on Customer’s timely payment of Fees and compliance with the terms and conditions of this Agreement, Davisware hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable, single-installation, single Location, perpetual (except as provided herein) license to use the Software and Documentation solely for Customer’s internal business purposes, and solely as designated on the applicable Order Form.
(b) Subscription Services. If the Software is accessed pursuant to Subscription Services as set forth in an applicable Order Form, then subject to and conditioned on Customer’s timely payment of Fees and compliance with the terms and conditions of this Agreement, Davisware hereby grants to Customer and its Authorized Users the limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Software and Documentation solely for Customer’s internal business purposes and solely as listed in the Order Form.
(c) Davisware IP. Customer acknowledges that all right, title, and interest in and to the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials, and all intellectual property rights therein (collectively, the “Davisware IP”), is, and at all times shall remain, the sole and exclusive property of Davisware. Except for the rights to access and use the Software and Documentation as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, any patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Software.
(d) Feedback. If Customer or any of its employees, consultants, agents or contractors sends or transmits any communications or materials to Davisware by mail, email, telephone, or otherwise, suggesting or recommending changes to the Davisware IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Davisware is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Davisware on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Davisware 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 Davisware is not required to use any Feedback.
(e) Use Restrictions. Customer shall not use the Software or the Subscription Services (if applicable) for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, attempt, directly or indirectly, to allow any third party to attempt to: (i) copy, modify, or create derivative works of the Software, Subscription Services (if applicable) or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, Subscription Services (if applicable) or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, Subscription Services (if applicable) or Documentation, in whole or in part; (iv) remove any proprietary notices from the Software, Subscription Services (if applicable) or Documentation; or (v) use the Software, Subscription Services (if applicable) or Documentation 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.
(f) Reservation of Rights. Davisware reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Davisware IP.
(g) Right to Suspend. Notwithstanding anything to the contrary in this Agreement, Davisware may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Software, Support Services or, if applicable, the Subscription Services if: (i) Davisware reasonably determines that (A) there is a threat or attack on any of the Davisware IP; (B) Customer’s or any Authorized User’s use of the Davisware IP disrupts or poses a security risk to the Davisware IP or to any other customer or vendor of Davisware; (C) Customer, or any Authorized User, is using the Davisware IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Davisware’s provision of the Software, the Support Services or, if applicable, the Subscription Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Davisware has suspended or terminated Davisware’s access to or use of any third-party services or products required to enable Customer to access the Subscription Services (if applicable), the Support Services or the Software; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Davisware shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Subscription Services (if applicable), the Support Services or the Software following any Service Suspension. Davisware shall use commercially reasonable efforts to resume providing access to the Subscription Services (if applicable), the Support Services or the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Davisware will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- CUSTOMER RESPONSIBILITIES; CUSTOMER INFORMATION; CONFIDENTIALITY
(a) Customer Responsibilities. Customer is responsible and liable for all uses of the Software, Documentation and, if applicable, the Subscription Services or resulting from access provided by Customer to any Authorized User or third party, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, Documentation, Support Services and, if applicable, the Subscription Services and shall cause Authorized Users to comply with such provisions.
(b) Customer Information. Customer will retain ownership of all right, title and interest in and to all Customer data, information and other content provided by Customer or any of its Authorized Users that is input and stored in Software (collectively, “Customer Information”). During the Term, Davisware may receive access to the Customer Information. Customer represents and warrants that it has complied with all applicable data protection laws and will obtain, all right, title, and interest in and to any Customer Information provided hereunder, which may be necessary for Davisware to process such Customer Information for the purposes set forth herein, including in connection with the analysis and monitoring of Customer’s and its Authorized Users’ use of the Software and the Subscription Services (if applicable) and in connection with the legitimate non-commercial business and information security operations of Customer. Davisware will follow industry standards to protect the security and integrity of the Customer Information, and it will provide Customer reasonably requested documentation of these processes and any security reviews or audits made of Davisware’s systems. Davisware will use the Customer Information solely to provide the Subscription Services, Software, and associated services under this Agreement. Davisware will back up the Customer Information consistent with Davisware’s then current Backup and Disaster Recovery Plan. Davisware shall protect Customer Information and Customer’s account with Davisware consistent with Davisware’s then current Security Policy.
(c) Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that is marked, designated, or otherwise identified as “confidential” or by its nature should reasonably be deemed to be “confidential” (collectively, “Confidential Information”). Customer Information shall be deemed Customer Confidential Information and the Software, the Fees and Documentation shall be deemed Davisware Confidential Information. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain, (b) known to the receiving Party at the time of disclosure, (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party, or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and if requested by the disclosing Party, certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(d) Right to Use Data. Davisware may create statistical reports relating to the Software or, if applicable, the Subscription Services utilizing transaction data, so long as such reports contain only anonymous data that does not identify Customer or any specific transaction data, and such reports may be reported publicly. Davisware may, from time to time, offer benchmarking programs to facilitate deeper analysis into commercial trends for companies wishing to participate. If applicable Davisware will use commercially reasonable efforts to operate benchmarking programs according to standards that protect the confidentiality of each Customer’s information.
- UPGRADES, UPDATES, MODIFICATIONS
(a) Updates and Upgrades. During the Term, if Customer is current on the payment of all Fees, Davisware will provide Customer with Updates without additional fees and will provide Upgrades, with or without additional fees as determined by Davisware in its sole discretion. To the extent there are any fees associated with an Upgrade, the Parties will enter into a written amendment setting forth the pricing and description of the applicable Upgrade. Updates and Upgrades will become part of the Software and will be subject to the provisions of Section 2 above and the other provisions of this Agreement. Davisware reserves the right to decline Support Services if the Customer is not current on the two most recent Updates and Upgrades.
(b) Modifications. If Customer desires to make any modifications to the Software, the Parties will enter into Statement of Work (SOW) setting forth the pricing and description of the modifications.
(c) English Language. All Software, Documentation, Support Services, and any related services are provided in English and if another language is needed, then Davisware will provide a quote on the Order Form for translation at Customer’s expense.
- FEES AND PAYMENT
(a) Fees. Customer will pay Davisware fees associated with the Perpetual Software, Support Services, Statements of Work and, if applicable, Subscription Services (the “Fees”) at such times and in such amount as set forth in the applicable Order Form without offset or deduction. If Customer fails to make any payment when due, without limiting Davisware’s other rights and remedies: (i) Davisware may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Davisware for all reasonable costs incurred by Davisware in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days beyond the due date, Davisware may suspend Customer’s and its Authorized Users’ access to any portion or all of the Software, Support Services or Subscription Services (if applicable) until such amounts are paid in full. Unless otherwise agreed upon in the Order Form, after the initial twelve (12) months of the Term (“Initial Term”), and after each subsequent 12-month period, unless a different amount is agreed upon in the Order Form, the Fees shall increase by up to the greater of: (i) 5% or (ii) the Increase in CPI; provided, however, that for any 12-month period after the Initial Term, Davisware may modify the Fee to reflect the then-current applicable list prices.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Davisware’s income.
(c) Travel Expense Recovery. Any pre-approved and reasonable travel and entertainment expenses incurred on behalf of this Agreement will be charged back to Customer and will be payable within thirty (30) days of the invoice date.
- WARRANTIES; DISCLAIMER OF WARRANTIES
(a) Function. For the period of twelve (12) months from the Effective Date, Davisware warrants that the Software when used and/or accessed in accordance with the Documentation and the terms and conditions of this Agreement will perform materially as described in the Documentation. In the event of breach of the warranty in this Subsection 6(a), Davisware will promptly repair the Software or replace it with software of substantially similar functionality. The remedies set forth in this Subsection 6(a) are exclusive and Customer’s sole remedies and Davisware’s sole liability under the limited warranty set forth in this Section 6(a).
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.
(c) Right to Grant License and Subscription Services. Davisware hereby warrants that it has the right to grant to Customer access and use of the Software or, if applicable, the Subscription Services in accordance with this Agreement.
(d) Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 6, DAVISWARE IP AND SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” AND DAVISWARE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(A), DAVISWARE MAKES NO WARRANTY OF ANY KIND THAT THE DAVISWARE IP, SUBSCRIPTION SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, AUTHORIZED USER’S, OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(e) Davisware provides no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Software made by anyone other than Davisware, unless Davisware approves such modification in writing; or, (ii) use of the Software in combination with hardware, software, or other technology: (A) not provided by Davisware; (B) that is forbidden by the Documentation; or, (C) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
- MAINTENANCE; IMPLEMENTATION SERVICES; PROFESSIONAL SERVICES
(a) Support and Maintenance. Subject to the terms and conditions of this Agreement, Customer shall have access from time to time to the Support Services set forth in Exhibit A hereto.
(b) Implementation Services. Subject to the terms and conditions of this Agreement, Davisware may provide the Implementation Services to Customer as described on the Order Form.
(c) Professional Services. Subject to the terms and conditions of this Agreement, Davisware may provide various consulting and professional services (“Professional Services”) to Customer as described on an Order Form and a SOW.
(d) Contractors. Davisware may use contractors to perform all or part of the Implementation Services, Professional Services or Support Services.
(a) Davisware Indemnification. Davisware shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or any use of the Subscription in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. If such a claim is made or appears possible, Customer agrees to permit Davisware, at Davisware’s sole discretion, to: (A) modify or replace the Software, or component or part thereof, to make it non-infringing; or (B) obtain the right for Customer to continue use. If Davisware determines that neither alternative is reasonably available, Davisware may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) Customer’s violation of this Agreement; (B) revisions to the Software made by a party other than Davisware or Davisware’s designee, or without Davisware’s written consent; (C) Customer Information; (D) Customer’s failure to incorporate Updates, Upgrades or modifications that would have avoided the alleged infringement; (E) use of the Software in combination with hardware, software, or technology: (x) not provided by Davisware; (y) that is specifically forbidden by the Documentation; or (z) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Davisware’s option, defend Davisware from and against any Losses resulting from any Third-Party Claim that the Customer Information, or any use of the Customer Information in accordance with this Agreement; (A) infringes or misappropriates such third party’s US intellectual property rights; (B) violates any law or regulation relating to the Customer Information; and (C) any Third-Party Claims based on Customer’s or any Authorized User’s (i) gross negligence or willful misconduct; (ii) use of the Software or Subscription in a manner not authorized by this Agreement; (iii) use of the Software or Subscription in combination with data, software, hardware, equipment or technology not provided by Davisware or authorized by Davisware in writing; or (iv) modifications to the Software or Subscription not made by Davisware.
(c) Indemnification Procedures. Each Party shall promptly notify the other Party in writing of any Third-Party Claim for which such Party believes it is entitled to be indemnified pursuant to Section 8(a) or Section 8(b). The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Third-Party Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Third-Party Claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Third-Party Claim, the Indemnitee shall have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Subsection 8(c) will not relieve the Indemnitor of its obligations under this Section 8, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
(d) Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDY AND DAVISWARE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR SUBSCRIPTION SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- LIMITATION OF LIABILITY
IN NO EVENT WILL DAVISWARE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER DAVISWARE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL DAVISWARE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DAVISWARE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- THIRD PARTY SERVICES
(a) Use of Third Party Providers. Customer or its Authorized Users may use the Software or Subscription Services to obtain one or more Third-Party Services from the provider that Davisware retains from time to time to provide that Third Party Service (a “Third Party Provider”). If Customer chooses to use a Third-Party Service, Customer grants Davisware permission to allow the Third-Party Provider to access and use Customer Information as required for the interoperation of that Third Party Service with the Software or Subscription Services (if applicable).
(b) No Warranty for Third Party Services. Davisware does not guarantee or warrant the continued availability of any Software features designed to interoperate with Third Party Services. Davisware may cease providing such features without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the Third-Party Provider ceases to make the Third-Party Service available for interoperation with the Software in a manner acceptable to Davisware. FURTHER, THE THIRD-PARTY SERVICES, FEATURES TO SUPPORT SUCH THIRD-PARTY SERVICES AND THE INTEROPERATION WITH SOFTWARE OR THE SUBSCRIPTION SERVICES ARE PROVIDED “AS-IS,” “WHERE IS” AND AS AVAILABLE. TO THE EXTENT PERMITTED BY LAW, DAVISWARE, AS IT RELATES TO THE THIRD-PARTY SERVICES, FEATURES TO SUPPORT SUCH THIRD-PARTY SERVICES AND THE INTEROPERATION WITH SOFTWARE OR THE SUBSCRIPTION SERVICES, EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE TERMS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
(c) Davisware as Third-Party Beneficiary. Any acquisition by Customer of Third-Party Services, and any exchange of data between Customer and any Third-Party Provider, is solely between Customer and the Third-Party Provider. If Customer or any Authorized User obtains Third Party Services, whether or not introduced or recommended by Davisware, CUSTOMER, ON BEHALF OF ITSELF, ITS AUTHORIZED USERS AND ANY AFFILIATES, AGREES TO LOOK ONLY TO SUCH THIRD-PARTY PROVIDER FOR ANY CLAIM RELATING TO SUCH THIRD-PARTY SERVICES. Without limiting the preceding sentence, Davisware is not responsible for any disclosure, modification or deletion of Customer Information resulting from access by such Third-Party Service or its provider. Customer shall comply with the terms of service of any Third-Party Service with which Customer uses the Software or the Subscription Services, and DAVISWARE SHALL BE A THIRD-PARTY BENEFICIARY ON ANY LIMITATIONS ON LIABILITY CONTRACTUALLY IMPOSED BY A THIRD-PARTY PROVIDER RELATING TO CUSTOMER OR ITS AFFILIATES.
(d) Customer Responsibility for Obtaining Consents. If Customer elects to use any of the Software, the Subscription Services, or Third-Party Services, Customer hereby acknowledges and agrees that Customer shall be solely responsible for obtaining all necessary consents from its users for any Third-Party Provider or Davisware to share personal data in accordance with all applicable laws and regulations, including data protection laws.
- TERM & TERMINATION
(a) Term. Unless terminated earlier pursuant to this Agreement’s express provisions, this Agreement will remain in effect from the Effective Date through the period set forth in the Order Form (“Term”); provided that this Agreement automatically renews for successive twelve (12) month periods (“Renewal Term”) unless either Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of the then-current term. All additional software modules and add-on services purchased by Customer will be coterminous with the then-current Term or Renewal Term, as applicable, of this Agreement.
(b) Termination. Either Party may terminate this Agreement: (i) effective on written notice if the other Party materially breach this Agreement, and such breach: (y) is incapable of cure; or (z) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, 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. In the event Customer terminates this Agreement pursuant to this paragraph, it shall be entitled to a pro rata refund of any prepaid fees. Notwithstanding anything to the contrary contained herein, Davisware may terminate this Agreement for convenience and without further liability upon sixty (60) days prior notice to Customer, provided however, Customer shall be entitled to a pro rate refund of any prepaid Fees.
(c) Effects of Termination. Upon termination of this Agreement, access to the Software and, if applicable, the Subscription Services will terminate, and Customer will cease all use of the Software. The following provisions will survive termination of this Agreement: (i) any obligation of Customer to pay for the Subscription Services before termination; (ii) Sections 2(c)-(f), 3, 6(d), 8, 9, 10, 11(c), and 12 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose. Upon Customer’s request, Davisware will provide, at Customer’s reasonable cost and expense, reasonable assistance services to assist Customer in the transfer and migration of the Customer Information to Customer or another third-party provider, for a period not to exceed ninety (90) days following the expiration or termination of this Agreement for any reason.
(a) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Subsection 12(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Subsection 12(a).
(b) Independent Contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
(c) No Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(d) Force Majeure. Davisware shall not be liable for any delay or failure to perform its obligations due to circumstances beyond Davisware’s control, such circumstances to include without limitation natural disasters, pandemics, terrorism, labor disputes, war, declaration of governments, transportation delays, computer and/or network failures, power failures, acts of civil or military authorities, interruptions in third-party telecommunications or internet equipment or service, adverse environmental conditions or factors, or misuse of the Subscription Services or the Software by Customer.
(e) Assignment & Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Davisware may assign this Agreement (without the consent of Customer) to any of its affiliates or to any person or entity acquiring a material portion of the assets, business, or securities of Davisware or any of its affiliates, whether by merger, consolidation, sale of assets or securities or otherwise. Any purported assignment or delegation in violation of this Subsection 12(e) will be null and void. No assignment or delegation will relieve Customer of any of its obligations hereunder. Except to the extent forbidden by this Subsection 12(e), this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(f) Governing Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Illinois, without effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner to affect the transactions as contemplated by the Parties.
(h) Non-Solicitation. Customer agree that, for the term of this Agreement and a period ending twelve (12) months following termination of this Agreement, neither it, nor its controlled affiliates, will, directly or indirectly, solicit for employment any individual employed by Davisware during the Term, provided, however, that the foregoing restriction on solicitations shall not restrict general solicitation of employment through advertisements or similar means that are not directed specifically at such employees.
(i) Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which counterpart will be deemed an original, but all such counterparts will constitute a single instrument.
(j) Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
(l) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3(c) (Confidentiality) or, in the case of Customer, Section 2(e) (Use Restrictions) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(m) Export Regulation. The Subscription Services utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly, or indirectly, export, re-export, or release the Subscription Services or the underlying software or technology to, or make the Subscription Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer 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 Services or the underlying software or technology available outside the US.
(n) Public Announcement and Use of Customer Name and Logos. Upon execution of this Agreement, the Parties agree to develop and issue a mutually agreeable press release announcing this transaction. Davisware may also use Customer’s name and logos in its marketing and advertising materials, including, but not limited to, on its website and in its investor decks.
Davisware Confidential and Proprietary.
Last update effective as of February 1, 2021.
DAVISWARE SUPPORT AND MAINTENANCE SERVICES
This Support and Maintenance Services document (“Support Document”) describes Davisware’s current Software maintenance and support services it provides to Customers who are current in the payment of all applicable Fees. This Support Document replaces the previous document entitled, “Davisware Annual Service Level Support and Maintenance MLA” and any reference to such document in any Customer agreement or Order Form shall be deemed a reference to this Support Document.
The terms, conditions, and policies set out in the Master Agreement and any applicable Order Form in effect between the Customer and Davisware shall apply to this Support Document and is incorporated by reference hereto. Any terms not defined in this Support Document shall have the definitions as stated in the associated Master Agreement or Order Form.
“Error” means any verifiable and reproducible failure of a Software to materially conform to the Documentation.
“Initial Response Time” means the period commencing when an Error or Issue is first reported by Customer’s Technical Contact(s) in the manner required by this Support Document and ending when a member of the Davisware technical support team logs the report and responds to the Technical Contact(s) by telephone, email or through the Support Portal.
“Issue” means any interaction involving Davisware with the client that is not a direct result of a verifiable or reproducible failure of the Software, and includes bugs, data issues, set-up issues, questions, printing problems, and other Customer assistance requested from Davisware.
“IT Support” means technical services to the Customer’s network and operating software provided under this Support Document that are directly correlated to the installation and operation of the Software. Services under this Support Document do not include:
- The cost of any third-party vendor or manufacturer support or incident fees of any kind.
- The cost to bring Customer’s environment up to minimum standards required for services.
- Service and repair made necessary by the alteration or modification of equipment other than that authorized by Davisware, including alterations, software installations or modifications of equipment made by Customer’s employees or anyone other than Davisware.
- Training services of any kind.
“Product Line” means a group of related products or items, which have common features, functions, or branding. For example, Remote Field Services (RFS) is part of the same Davisware Global Edge product line. Notwithstanding, Davisware Global Edge and Vision are standalone product lines.
“Respond” means acknowledgment of the notification from a Technical Contact of an Error or Issue, which acknowledgment will include support technician’s name, date and time assigned, and severity assignment.
“Standard Business Hours” means from 08:00 to 17:00 CST, (8:00 am to 5:00 pm CST) Monday to Friday (excluding national and bank holidays).
“Support Customers” means those Customers who have purchased support services or Subscription Services and who have timely paid all applicable Fees.
“Support Portal” means Davisware’s online support website.
“Technical Contacts” means Customer’s personnel that have been identified in writing by Customer as the technical contacts for Customer and authorized to contact Davisware for support.
2. CUSTOMER SYSTEM ENVIRONMENT MINIMUM STANDARDS
2.1 Minimum System Requirements. Davisware’s Support Services require the Customer system environment meet the following minimum requirements. Davisware shall have no obligations to provide Support Services if the following requirements are not met to Davisware’s reasonable satisfaction:
- All (i) new Customer servers with Microsoft Windows operating systems must be running the latest version or the preceding version of the Windows and SQL server, (ex. Windows 2022 or 2019 as of 12/2022), and (ii) existing Customers must be using Windows 2012 R2 server and SQL 2012 or later, and have all of the latest Microsoft Service Packs and Critical Updates installed;
- All desktop PC’s and notebooks/laptops with Microsoft Windows operating systems must be (i) running Windows 8.1 or later, (ii) have all of the latest Microsoft Service Packs and critical updates installed, (iii) use minimum 8 GB, with 16 GB preferred, and (iv) preferred to have wired Cat 5 or better network cabling utilized by each workstation to the server;
- Davisware only supports Explorer 11 internet browser for the Vision 1.0, any web browser for Vision 2.0 and other web based software. Remote Field Service module has specific requirements and Customer should consult with Davisware prior to installation.
- All server and desktop software must be genuine, licensed and vendor-supported;
- The environment must have a currently licensed, up-to-date, and vendor-supported server-based antivirus solution protecting all servers, desktops, notebooks/laptops, and email;
- The environment must have a currently licensed, vendor-supported server-based backup solutions that can be monitored, and send notifications on job failures and successes; and
- The environment must have a currently licensed, vendor-supported hardware firewall between the internal network and the internet.
- All systems must have Windows Firewall enabled.
2.2 System Upgrade Requirements. As technology evolves, these minimum standards will also change. When a new requirement is introduced for a Customer’s system environment to meet minimum standards, the Customer shall be given a reasonable amount of time by Davisware to upgrade the service environment. The upgrade time period shall be set by Davisware in its sole discretion based upon the circumstances giving rise to the need for the change in minimum standards.
2.3 Davisware’s Right to Terminate. Should the Customer refuse to maintain its system environment at the minimal standards set forth herein or as modified by Davisware from time to time or should the Customer refuse to update or upgrade the system environment when a new standard is set by Davisware within the time period required, Davisware shall have the right to immediately terminate all Support Services upon thirty (30) days’ written notice to Customer.
2.4 Additional Engagement Available. Customer may engage Davisware to perform all actions required to upgrade Customer’s system environment to meet the applicable minimum standards, but any such upgrade work shall be set forth on a separate SOW and the fees and expenses for such work shall be separate from, and in addition to, the fees and expenses for Support Services set forth herein.
3. SUPPORT SERVICES
3.1 Standard Business Hours. Unless otherwise expressly set forth herein, all references in this document to response times or communications from Davisware shall only apply during Davisware’s Standard Business Hours, regardless of when a support matter is reported to Davisware. For example, Davisware’s Standard Business Hours for Customers located in New York would be 09:00 to 18:00 EST, Monday to Friday (excluding U.S. federal and bank holidays). In the event of an Urgent Priority Error or Issue (as defined in the table below), support may be available as required outside of Standard Business Hours. Davisware may charge, at its sole discretion, fees and expenses associated with any support provided outside of Standard Business Hours.
3.2 Software Support Services.
3.2.1 Scope of Coverage. Support includes support for Error or Issue determination, verification, and resolution (or instruction as to work-around, as applicable) during Davisware’s Standard Business Hours for all Errors or Issues. Coverage includes:
- Telephone or electronic support during Standard Business Hours to help Customer locate and correct Errors or Issues with the Software.
- Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications and Documentation.
- All Updates that Davisware, at its sole discretion, makes or adds to the Software and which Davisware furnishes, without charge, to all other customers.
- Up to five (5) contemporaneous Technical Contacts, unless otherwise agreed in writing or on the applicable Order Form.
3.2.2 Support Case Handling. Davisware will assist Support Customers in issue analysis to determine whether or not the technical issue is related to the Software or Third Party Services. In furtherance of its analysis, Davisware reserves the right to request that the Third Party Services be removed. Davisware may in its discretion reach out to third-party vendors.
3.2.3 Update Information. Customers may contact Davisware Support for information regarding Updates performed by Customer, such as installation instructions, release documentation, and general guidance for multiple environments.
3.2.4 Remote Server Access. All remote service access protocols/methods must be approved in writing by Davisware. This includes one-time usage. Davisware does not support any form of VPN software.
3.2.5 Response Times. Davisware will use commercially reasonable efforts to Respond within the initial response time targets set forth in the table below for Errors or Issues reported by a Technical Contact to Davisware via Support Portal. Davisware will Respond to Customer’s Technical Contact by telephone or via the Support Portal. Davisware shall use commercially reasonable efforts, consistent with industry practice, to investigate such reports to determine whether there is an Error or Issue present. If Davisware determines that an Error or Issue is present, Davisware will use commercially reasonable efforts to correct the Error or Issue and/or provide a workaround, including, without limitation, by providing Customer with an Update. Davisware will communicate with Customer until the Error or Issue is resolved (in accordance with Section 4 below) or a work-around is provided. Davisware reserves the right to modify the severity assignment designated by the Customer depending on the nature of the Error or Issue.
Urgent Priority Error or Issue
The Software is inoperable or not accessible in a production environment or that a Davisware Cloud Services Offering is down or not available due to (i) a server-side failure, but not as a result of scheduled maintenance and/or upgrades, or (ii) any event beyond the reasonable control of Davisware, including but not limited to any interruption of power, telecommunications or Internet connectivity, and any failure of Customer’s internal telecommunications equipment, browser or network configurations, hardware and/or third party software)
|Davisware will Respond within 2 hours.
|Upon confirmation of receipt, a Davisware support personnel begins continuous work on the Error/Issue, and a Technical Contact must be available at any time to assist with Error/Issue determination. Davisware support will use commercially reasonable efforts, consistent with industry practice, to provide a workaround or fix with utmost urgency once the Error/Issue is reproducible or once Davisware has identified the Software defect.
High Priority Error or Issue
Major Software functionality is materially impacted and not working in accordance with the technical specifications in the Documentation or significant performance degradation is experienced so that critical business operations cannot be performed.
|Davisware will Respond within 4 hours.
|Davisware support will use commercially reasonable efforts, consistent with industry practice, to provide a workaround or fix with increased urgency, once the Error/Issue is reproducible.
Normal Priority Error or Issue
A defect that’s not mission-critical or business-critical and not working in accordance with the technical specifications in the Documentation.
|Davisware will Respond within 8 hours.
|Davisware support will use commercially reasonable efforts, consistent with industry practice, to provide a workaround or fix with standard urgency, once the Error/Issue is reproducible.
Low Priority Error or Issue
Software functions working fine but there may be an inconvenience.
|Davisware will Respond within 24 hours.
|Resolution of the Error/Issue may appear in a future release of the Software.
4. ERROR OR ISSUE RESOLUTION AND ESCALATION
4.1 Error or Issue Resolution. An Error or Issue is considered to be resolved upon the earlier to occur of the following: (i) Davisware and Customer mutually agree in writing that the issue or problem is resolved; (ii) Davisware has provided Customer with an Update; (iii) a technical work-around solution is provided and is reasonable in Davisware’s discretion; (iv) Customer requests that Davisware close the support case; or (v) the support case has been left open by the Customer for ten (10) consecutive business days, during which period Davisware has not received a response from any of Customer’s Technical Contacts.
4.2 Exclusions. Notwithstanding anything in this Support Document to the contrary, Davisware will have no obligation to provide any Support Services in connection with: (i) any issue or problem that Davisware determines is not due to any Error, Issue or deficiency in the Software (including without limitation, issues or problems caused by stand-alone third party software products used in conjunction with the Software, the Internet or other communications, Customer network or browser matters, or login issues); (ii) use of the Software other than in accordance with the Documentation and the Master Agreement; (iii) use of the Software provided on a trial or evaluation basis or for which Customer has not paid any fees; (iv) any Errors, Issues or problems with the applicable Software that are not reproducible; (v) any Error, Issue or problem that is not reported by Customer via the Support Portal; or (vi) any Errors, Issues or problems with the Software that result from: (a) the use of the Software with software or hardware not designed for use with the operating systems approved by Davisware in the Documentation; (b) the use of the Software with hardware that does not satisfy the minimum system requirements specified by Davisware in the Documentation or hereunder; (c) changes, modifications, or alterations to the Software not approved in writing by Davisware or its authorized representatives; (d) use of the Software with third party operating systems, databases, data sources, network software and Customer applications that are no longer supported by the related product vendors, or (e) use of a version of the Software that Davisware has notified the Customer that Davisware no longer supports.
4.3 No Third Party Services Obligation. If Davisware does correct any of the Errors or Issues described in Section 4.2 above, or otherwise provides support for Software that is not covered by the terms and conditions contained in this Support Document, such Error or Issue resolution or support will be provided only following Customer’s written approval in an SOW. Without limiting any of the foregoing, Davisware has no obligation to provide support for any third-party software, data, or other materials distributed or bundled with the Software.
In addition to its obligations under Sections 2 and 3 of this Support Document, Davisware will make Updates available to all Customers with a current Support agreement or Subscription Services, when and if Davisware elects to make them generally commercially available. All Updates provided to any Customer under this Support Document will be made available at Davisware’s discretion, in a form of digital medium, or for Software, via the Davisware Software download site or Support Portal. Each Update will be provided together with the associated Documentation. Unless otherwise agreed in writing by Davisware, Customer shall be responsible for installation of all Updates. Davisware is under no obligation to develop any future functionality, programs, services, or enhancements.
6. CUSTOMER’S OBLIGATIONS
6.1 Timely Information. Customer will provide timely information and access to knowledgeable resources as reasonably required to provide support. Davisware’s support obligations shall be excused to the extent Customer fails to cooperate in this regard.
6.2 Restrictions. The Customer shall: (i) not request, permit or authorize anyone other than Davisware (or a Davisware-authorized support partner or provider) to provide any form of support services in respect of the Products; (ii) cooperate fully with Davisware’s personnel in the diagnosis or investigation of any Error, Issue or other problem with the Softwares; (iii) be responsible for purchasing, installing and maintaining all hardware and operating systems required to use and support the Software; and (iv) be responsible for maintaining all third party software not explicitly included on an Order Form or otherwise provided by Davisware.
6.3 Contact with Davisware. Customer’s contact with Davisware in connection with Customer’s requests for support and reports of Errors or Issues shall be solely through its Technical Contact(s). The Technical Contact(s) shall: (i) serve as the internal contact(s) for Customer’s and its Authorized Users’ personnel who are authorized to use the Softwares per the terms of the Support agreement; (ii) be responsible for initiating all requests by, and maintaining all records of, the Customer and its Authorized Users relating to Support Services; (iii) serve as the contact(s) with Davisware on all matters relating to Support Services; and (iv) be responsible for providing information and support, as requested by Davisware, to assist in the reproduction, diagnosis, analysis, and resolution of Errors or Issues. Customer shall ensure that its Technical Contacts comply with any reasonable training requirements for the Technical Contact(s) upon notification by Davisware. Subject to the previous sentence, Customer may change its Technical Contact(s) by notifying Davisware in writing.
6.4 Remote Access. If Davisware is unable to reproduce a problem or the solution requires modifying Software configuration parameters, Davisware may require Customer to provide remote access in order to continue providing support. Customer shall ensure that a functioning system enabling Davisware to have remote access to Customer’s technical equipment is installed (subject to Customer’s reasonable security measures and policies) and that satisfactory communication between the parties’ computer systems is possible. Customer agrees to be solely responsible for protecting and backing up its equipment, software, and data prior to any such access. Davisware accepts no liability in connection with remote access support. A request for a remote connection will come only after other options are explored.
6.5 Authorized Users. Customer will be responsible for primary support of any Authorized Users in connection with their use of the Software in accordance with the terms of the Master Agreement. Customer is solely responsible for: (i) distributing all Updates to its Authorized Users; (ii) passing on to its Authorized Users all support materials as appropriate; and (iii) providing software support, including operational instruction, problem reporting and technical advice to its Authorized Users, in each case of (i), (ii) and (iii) above, as necessary to enable the Authorized Affiliate to continue to use the Software as authorized under the Master Agreement. Customer’s Authorized Users, as well as its contractors and third-party users, may not contact Davisware directly for support of the Software, unless designated as a Technical Contact by the Customer.
6.6 Operating Systems. Davisware supports the Software in designated operating systems as described in the Documentation and not specific hardware configurations. If Customer is running the Software on a virtual environment, Customer and the virtual environment vendor will be responsible for any interactions or issues that arise at the hardware or operating system layer as a result of Customer’s use of a virtual environment. Davisware reserves the right to request Customers to diagnose certain issues in a native designated operating system environment, operating without the virtual environment, as needed to determine whether the virtual environment is a contributing factor to the issue.
6.7 Non-production Environment. Customer is expected to use a non-production environment for development and to conduct sufficient testing before making any updates to production.
7. ADDITIONAL TERMS
7.1 Included Support Services. Support Services are included with all Subscription Services and provided by Davisware. Customer is required to separately purchase Support Services on all Perpetual Software for a twelve (12) month period beginning on the delivery date of the Software (the “Initial Support Period“). Customer must maintain support uniformly for all perpetual licenses within the same Product Line. In order to purchase additional Software, Customer must be current on Fees for all previously purchased Perpetual Software within the same Product Line. In the event the Customer elects not to renew Support Services for its Perpetual Software, the non-renewal must apply to all licenses within the same Product Line. Notwithstanding the foregoing, any Software or Subscription Services purchased as a bundle, package, or special offer or promotion (e.g., enterprise licenses) must be supported together at a uniform level, regardless of whether such purchase includes multiple Product Lines.
7.2 Term of Support Document. This Support Document will remain in effect concurrent with the Master Agreement and will terminate or renew subject to the termination and renewal provisions of the Master Agreement. Unless otherwise agreed in writing, Support Services for Perpetual Software shall be automatically renewed for successive twelve (12) month periods (each, a “Support Period“) unless Customer provides Davisware with written notice of non-renewal at least sixty (60) days prior to the end of the-current annual period. Support fees for any additional Software purchases will be prorated to achieve a common annual Support Period with existing licenses but does not relieve Customer of its payment obligations for the remainder of the Support Period. For avoidance of doubt, Customer is responsible to pay the entire Support Fee for the Initial Support Period on all additional purchases of Software regardless of whether such purchase is co-termed and prorated for purposes of invoicing. To the extent a Customer is permitted to add Authorized Users or Software within the Product Line to a Perpetual Software deployment, Customer must be current on all Updates and Upgrades for all Software within the same Product Line and deployment.
7.3 Reinstatement. Reinstatement of lapsed or cancelled Support Services for Perpetual Software will be subject to payment by Customer of: (a) the then-current annual Support Fees payable for the 12-month period beginning on the date of reinstatement; and (b) the aggregate Support Fees that would have been payable for the relevant Software during the period of lapse in the absence of termination or non-renewal, provided that: (i) the combined reinstatement fees are paid within twelve (12) months after the date of the lapse; and (ii) Customer pays Davisware a Support reinstatement fee equal to twenty-five percent (25%) of the total Support Fees payable to Davisware for all applicable Software licensed by Customer. Reinstatement beyond this date will be at Davisware’s sole discretion. Reinstatement fees may be assessed once notice of cancellation or non-renewal is provided, even if a request for reinstatement is provided prior to the expiration of the current Support Period.
7.4 Extensions. Davisware may elect to make certain Software publicly available under an open-source license and free of charge on various online communities (“Extensions“). Support Services apply only to certified Davisware Extensions. Support for all other Extensions is provided solely by the open-source community. To the extent Customer uses non-certified Extensions in connection with the Software, Support Services apply only to the Software and Software API.
7.5 Davisware Library. Davisware may make available certain internal library resources created by Davisware (“Davisware Library“) that are available for use by the Customer with the Software.
7.6 Freeware. Davisware may elect to make certain software available free of charge for trial, evaluation, or other purposes (“Freeware“). Support for Freeware, if any, will be provided at Davisware’s discretion and in accordance with the license terms for such Freeware.
7.7 No Personal Information. For certain services provided under this Support Document, the transmission of machine logs may be required. For avoidance of doubt, Customer shall not include any business sensitive and/or personal information via such transmissions. Accordingly, Davisware shall not be deemed a Data Processor under the General Data Protection Regulation (EU) 2016/679 (the “GDPR“) in providing support for the Software. However, should Customer send to Davisware any log files or other information containing personal data, Davisware will comply with Davisware’s privacy policies as may be modified by Davisware from time to time. Customer shall take reasonable measures to limit the amount and sensitivity of such data provided to Davisware (by anonymization, for example).
Last updated: February 1, 2022
Davisware, Inc. confidential and proprietary.