SSSA Rev. 2014-12-19
MaxxVault
®MaxxDocs
®Software Subscription and Support Agreement
3340 Veterans Memorial Highway Suite 400 Bohemia, NY 11716 631-446-4800 www.maxxvault.com Customer: Address: Support Contact: Effective Date:
Yearly Support and
Subscription Amount: Number of Hours per Year:
IMPORTANT—READ CAREFULLY: This Software Subscription and Support Agreement (“Agreement”) is a legal AGREEMENT between you, the “Licensee” (either an individual or a single entity) and MaxxVault LLC (“Licensor”) for the MaxxVault® or MaxxDocs® software product, which includes computer software and associated media, printed materials, and “online” or electronic documentation (“Software”). An amendment or addendum to this AGREEMENT may accompany the Software.
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1 DEFINITIONS
Used in this Software Subscription and Support Agreement, the following terms shall have the following respective meanings.
1.1 “Licensor” is MaxxVault LLC (MAXXVAULT) who has executed the Software Subscription and Support Agreement of which these Master Software License Terms form a part.
1.2 “Agreement” is the Software Subscription and Support Agreement of which the Master License and Software Terms and Conditions form a part.
1.3 “Licensee” is the person, company or affiliates thereof that purchased the license for the Software. 1.4 “Subscriber” is the person, company or affiliates thereof that has purchased and maintains a current
Software Subscription and Support Agreement and license(s) for the Software.
1.5 “Software” is the software product manufactured by MAXXVAULT. All software purchased by the client that is developed by MAXXVAULT would be covered under this agreement. This includes the software program provided by MAXXVAULT in which MAXXVAULT has sub-licensing rights in executable, machine readable, object, printer or interpreted form, including any document modifications, improvements, or updates supplied to the Licensee.
1.6 “Software License” or “License” is the License supplied by Licensor.
1.7 “System(s)” refers to any Computer or Server that the Software has been licensed to run on.
1.8 “Services” or “Software Support” refers to the delivery of technical Software support the current software application and MAXXVAULT products installed. Yearly support is not unlimited and it is tied to the number of hours per year included in your support package. Additional hours may be purchased if required. Support does not include new projects or upgrading MAXXVAULT software on existing client servers. These are billable professional services. Clients that don’t use all of their support hours in a given year could apply those hours to MAXXVAULT software upgrade services.
1.9 “Service Support Fee” is the fee charged for Services for the Software; the Term, the amount specified under ‘ANNUAL SUPPORT FEE” on the first page of this Agreement; and for each subsequent twelve (12) month period thereafter during the Software Support Term, the standard fee charged by Licensor. 1.10 “Software Support Subscription” provides access to all Software Updates and New Releases.
1.11 “Software Update” is any enhancement or modification made by Licensor to the Software (in conjunction with revisions to the documentation) that provides a ‘bug fix,’ but does not provide additional functionality. 1.12 “New Release” is a completely new version of the Software that provides enhanced or additional
functionality and performance based on the then current license key. The availability of New Releases is dependent upon the status of the Software Subscription and Support Agreement.
1.13 “Supplemental Product” is a software product developed and manufactured by a Third Party and distributed by Licensor as part of the Software. Licensor will provide general operational support and service, but updates are available either through new releases or the Third Party exclusively.
1.14 “Supported System(s)” refers to the required specifications of any hardware, platform, or operating system and its version that functions with the Software.
1.15 “Documentation” is the user manuals, handbooks, and other materials relating to the Software.
1.16 “Exhibits” is any addendum to this Agreement describing the Software, Documentation, fees, and any special Terms and Conditions thereof. Additional Exhibits may be added to the Agreement to add further Software or Documentation and to add to alternative terms of fee scheduled. An Exhibit will be considered part of this Agreement referencing such Exhibit and executed by LICENSEE and LICENSOR.
1.17 “Primary Contact” is the person authorized by the Licensee to request service from the Licensor and to who all updates will be sent.
3 2 SUBSCRIPTION TERM
2.1 This Agreement is effective as dated on the face of this contract when signed by authorized signers. 2.2 For a period of one (1) year from the Effective Date of the Software (known hereafter as ‘the Maintenance
Term’), Licensor will supply Software Support Services to the Licensee with respect to the Software for which Licensor has granted a license to the Licensee pursuant to a software license Agreement (the ‘Software License Agreement”) by and between the Licensee.
2.3 The Term of this Agreement will be in effect and continue thereafter, subject to a mutually agreed upon change in fees, until terminated by either party upon (30) days written notification. The Licensee will be invoiced for Software Support Services (60) days in advance of the anniversary of the Effective Date and must be paid 15 days prior to current terms expiration date. The Maintenance Term shall be renewed once payment for the renewed maintenance Term is received by Licensor. The renewed Maintenance Term shall commence on the anniversary of the Effective Date. To continue to receive Software Support, the Customer must have a valid Software Support Agreement in effect.
2.4 In the event Licensee ceases to pay the Software Subscription and Support Agreement Term extension fees, Licensor will not provide Software Support Services.
2.5 After expiration of MaxxVault Maintenance Term, Licensee may resume Software Subscription and Support by payment of the then current annual Maintenance and Support Fee, payment for any of the lapsed support period and a 20% lapse fee on re- instatement amount.
2.6 After expiration of MaxxDocs Maintenance Term, Licensee will be required to purchase a new retail copy of the software at current published rates in order to resume Software Subscription and Support.
3 FEES & PAYMENT
3.1 The Service Fee will be a sum in accordance with the then current rates charged by Licensor. Fees are payable in advance when the Software Subscription and Support Agreement referencing these Software Support Terms and Conditions is executed by Licensee and Licensor, or upon the commencement of an additional term, as the case may be.
3.2 Licensee shall be responsible for and shall pay to Licensor the fees as further described on page 1 of this Agreement subject to the terms and conditions contained therein. Failure by Licensee to make payment of any invoices past due more than thirty (30) days shall constitute default. Failure by either party to perform an obligation or covenant under this Agreement shall constitute default. Upon default, at its sole discretion, either party may terminate this Agreement by written notification to the other.
3.3 Licensor may, at its sole option, immediately terminate or temporarily suspend all of its responsibilities stated in this Agreement in the event Licensee is delinquent in the payment of any invoice from Licensor for a period in excess of thirty (30) days, but only after written notice to Licensee of such intent and providing a cure period of ten (10) days.
3.3.1 Licensor may charge interest of 1.5% per month on past due invoices.
3.4 Licensor may change the service charges or composition of the Software Support Service Offering effective at the end of the initial Maintenance Term or any additional term by giving Licensee at least (60) days prior written notice. Licensee shall have the right to terminate Software Support Services in their entirety, as of the effective date of such change by giving Licensor written notice to that effect prior to the effective date; otherwise such change shall become effective and apply to the selected Service Offerings set forth in the Software Subscription and Support Agreement to which such notice applies as of the effective date specified in Licensor’s notice.
3.5 Licensee agrees that Licensor will have the right to charge in accordance with Licensor’s then current policies, for any Software Support Services to correct errors, defects or problems created by Licensee in Licensee's modification of any software offering, or unless otherwise provided herein, resulting from Licensee's failure to utilize current software offering Updates provided by Licensor. Licensor shall have no obligation to provide Software Support Services to correct such errors, defects or problems created by Licensee, or for any modifications to the software offering made by Licensee, and Licensee shall not be obligated to pay for any such Software Support Services, unless agreed to in writing by Licensor and Licensee.
4 SUBSCRIPTION AND TECHNICAL SUPPORT SERVICES
4.1.1 The Licensee agrees to designate two persons, one whom shall be the Primary Contact and the other whom shall be designated the Alternate Contact for your communications with Licensor relating to the Software Support Services under this agreement. These shall be the only person(s) who Licensor is obligated to communicate with under this Agreement. The Licensee shall notify Licensor by email of the names, email addresses and telephone numbers of the contact persons. Licensor’s email address for notification is support@maxxvault.com
4.1.2 Licensee shall execute and have in force a valid Software Subscription and Support Agreement. 4.1.3 The Licensee is responsible to maintain its (i) hardware, (ii) operating systems, (iii) network setup and data backups,
(iv) network maintenance (v) setup and use of any file
access control systems.
4.1.4 The Licensee is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the Software.
4.1.5 The Licensee shall provide its personnel access to, and require its personnel to review, the relevant online documentation (supplied with Software) before calls are made to Licensor.
4.1.6 Licensee agrees to implement each patch, work around, update, or other solution to such problem provided by Licensor. Failure to do so releases Licensor from any obligation to further support the software.
4.1.7 Licensee is responsible for acquiring and maintaining current release levels of Supplemental Products as recommended by Licensor.
4.2 Software Support:
4.2.1 Licensor may provide any of the following to help resolve a support issue - telephone, email, web meeting and corrective diagnostics support. Standard Service Level Agreement initial response time for MaxxVault clients is 3-6 hours during regular business hours. Standard Service Level Agreement initial response time for MaxxDocs clients is Next Business Day during regular business. Regular business hours are described as Monday – Friday 8:30 am to 6:00 pm EST. 4.2.2 Diagnostics will include the verification of the problem and conditions under which such problems
may recur. This shall include problem isolation to hardware or Licensor software. After such verification and determination that a Software problem exists, in response to a Licensee’s request for support, Licensor will work with and guide the Licensee to a solution to the problem via telephone and/or web access support. Software application training and software Administration functions are not covered under this agreement. Additional service hours will need to be purchased.
4.2.3 Licensor will offer Software Support Services for the then current release of Software. The number of hours for support offered is directly tied to the amount of the support and maintenance fees. 75% of the fee is applied to software updates and 25% towards remote support hours. Hourly support rate is $125 per hour for calculation purposes – I.E. Support and Maintenance contract is for $3000. $2250 is applied to software updates and $750 towards support hours which equals 6 hours for the year. Software defects are not deducted from support hours. Licensor will also offer Software Support Services for the release of Software immediately preceding the then current release for not less than (24) months from the date of such release.
A patch for the problem.
A temporary work around.
A statement that the problem will be corrected in the next update release.
A statement that the problem will be reported to the Third Party of the Non-Update Product.
A statement that more information about the problem is required.
A statement that the Software Product operates substantially as described in its current user documentation or that the problem.
4.3 Support Exclusions:
4.3.1 Software Support Services shall not include the diagnosis and rectification of any fault arising from:
The improper use, operation or neglect of the Software;
The modification of the Software or its merger (in whole or in part) with any other software
The failure by the Licensee to implement recommendations in respect of the solutions and faults previously advised by Licensor;
Any repair, adjustment, alteration or modification of the Software by any person other than Licensor without Licensor’s prior written consent;
Any breach by the Licensee of its obligations under this Agreement or the License;
The use of the Software for a purpose for which it was not designed.
4.3.2 Licensor may, on the request of the Licensee, provide support notwithstanding that the fault results from any circumstances in Section 4.3 or that the support requested is not covered by the terms of this Agreement. Licensor shall in such circumstances be entitled to charge for such service at Licensor’s then-current rates for work undertaken on a time and materials basis or via a fixed quote at the discretion of Licensor.
4.3.3 Under this Agreement, Licensor will not provide updates on specific Third Party packaged software (e.g. Microsoft products: Windows, MS SQL, etc.). It is the end-user’s responsibility to register all Third Party products with the appropriate vendor.
5 TERMINATION
5.1 Without prejudice to any other rights, either party may cancel this Agreement if the other party does not abide by the terms and conditions of this Agreement.
5.2 The Licensor may terminate this Agreement if it fails to comply with the Terms or any related agreement between Licensor and the Licensee provided that (30) days prior written notice is given during which Licensee has failed to correct the breach where such breach is capable of remedy.
5.3 This Agreement is effective until terminated by mutual consent, operation of law, or Agreement that some other term is applicable (e.g., effective for a one (1) year period from the date of receipt of the Software and continuing for subsequent periods upon payment of the license fee. Licensor shall provide (30) days written notice to Licensee prior to the end of the current period.)
5.4 The rights and licenses granted in this Section shall continue in the event that Licensor ceases to exist as a going concern or ceases to make the Licensed Program available to customers
6 ENTIRE AGREEMENT
6.1 This Agreement (including any addendum or amendment to this Agreement which is included with the Software) is the entire Agreement between Licensor and Licensee relating to the Software and the Support Services (if any) and they supersede all prior or simultaneous oral or written communications, proposals, and representations with respect to the Software or any other subject matter covered by this Agreement. To the extent the terms of any Licensor policies or programs for Support Services conflict with the terms of this Agreement, the terms of this Agreement shall control.
7 GENERAL PROVISIONS
7.1 Separation and Disassembly. The Software is licensed as a single product. Its source code and database objects may not be separated or disassembled for use in other applications without the express written consent of Licensor.
7.2 Limitation on Reverse Engineering. You may not reverse engineer the Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
7.3 Export Restrictions. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
7.4 Distribution Restrictions. You may not distribute copies of the Software except as granted herein or by separate written Agreement with Licensor. You may not assign, sell, distribute, lease, rent, sublicense, or transfer the Software in any form including, but not limited to, the following: You may not distribute copies through any physical storage media such as CD or disk.
8 COPYRIGHT NOTICE.
The Software is protected by copyright and other intellectual property laws and treaties. The Software may not be copied, in whole or in part, except as provided herein. Licensor owns the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold.
9 ASSIGNMENT
Neither this Agreement nor any rights granted hereunder may be assigned or transferred, in whole or in part, by Licensee without the express prior written consent of Licensor, which consent shall not be unreasonably withheld or delayed. Any attempt to do so shall be void.
10 GOVERNING LAW
If this Software was acquired in the United States, this Agreement is governed by the laws of the State of New York. If this Software was acquired outside the United States, then local law may apply.
11 FORCE MAJEURE
Except with respect to Customer’s obligation to make timely payments, neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, Acts of God or the Public Enemy, inability to secure raw materials or transportation failures, acts of omissions of carriers or suppliers or other causes beyond its control whether or not similar to the foregoing.
12 ACCEPTANCE
Signing the agreement, any MaxxVault LLC software usage or using MaxxVault support services constitutes acceptance of each provision of this Software Subscription and Support Agreement.
