iMaint Online Service Agreement
This document constitutes a legal software service agreement (“Agreement”) between you (“Customer”, “You”, “Your”) and DP Solutions, Inc. (“DPSI”) for the non-transferable use of the iMaint Online Internet-based service (“Service”) and use of Your data associated with the Service (“Data”).
1. TERM AND RENEWAL. The term of this Agreement (“Term”) shall be one year or as specified in the iMaint Online Quotation. You have the right to cancel this Agreement as specified in section 12 of this Agreement. In this Agreement, Term shall refer to both the initial Term and subsequent renewal Terms. This Agreement shall automatically renew for additional Terms unless You provide thirty (30) days written notice to DPSI prior to the expiration date.
2. SERVICE FEES
2.1 Service Fees. The schedule of Service Fees set forth in the iMaint Online Quotation is incorporated into this Agreement by reference.
2.2 Named Users. A named user (“User”, “Users”) is a unique named person. Service Fees are based on the number of User accounts in the System, which corresponds to the total number of Users that can access the System at any one time. Each User account can only be used by one person at any one time.
2.3 Pricing Guarantee. Your Service Fees for use of the Service are guaranteed to remain unchanged during the Term of this Agreement. At the end of each Term, Your Service Fees are subject to change. DPSI will provide You with notice of any such change at least thirty (30) days prior to the end of the Term. For each subsequent renewal Term, the Service Fees in effect during the first month of the Term shall remain unchanged during that Term.
2.4 Payment Terms. Your payment for use of the Service will include one-time non-recurring site setup fees plus recurring fees as specified in the iMaint Online Quotation.
2.5 Non-Payment of Service Fees. If payment of Your Service Fees are not received when due, DPSI will attempt to communicate with Your designated contact. This communication will take a method of DPSI’s choosing such as, but not limited to, electronic mail, telephone and postal mail. If the late payment is not resolved, DPSI reserves the right to temporarily suspend Your access to the Service. Any such suspension of access will not affect Your Data. After thirty (30) days of suspension, DPSI will terminate this Agreement and remove Your Data from the Service. You will have thirty (30) days from account termination to settle any delinquent Service Fees and request a copy of Your Data. A request for a copy of Your Data will be governed by the terms set forth in Section 12.3 of this Agreement. After thirty (30) days from termination, if delinquent Service Fees have not been settled, DPSI reserves the right to permanently delete Your Data.
2.6 Taxes Due. Any applicable federal, state or local taxes may apply. If the Service will be used in the following states or Canada, applicable taxes will be included in Your monthly charge or invoice: North Carolina, Florida, Virginia, Wisconsin, California, Texas, Michigan, and Illinois. This is subject to change based on changes to tax codes, which are beyond DPSI’s control.
3.1 Access. DPSI will provide Your Users with login access to the Service following receipt of the site setup fees specified in section 2.4. The maximum number of Users that can use the Service and access Your Data shall be determined by Your monthly Service Fees.
3.2 Storage of File Attachments. You shall be provided with storage for file attachments. If deemed excessive by DPSI, you will be contacted and additional fees may apply.
3.3 No Title. This Service confers no title or ownership in the iMaint Online Software and is not a sale of any rights in the Service. This Service and associated computer code is owned by DPSI and is protected by copyright law and international copyright treaty.
3.4 Use Restrictions. You agree not to use, or allow Your Users to access, the Service in violation of any applicable laws or regulations.
4. TECHNICAL SUPPORT
4.1 Access to Technical Support. DPSI provides standard support for the Service between the hours of 8:00 AM and 8:00 PM Eastern Time Monday through Friday, excluding Holidays. You are entitled to unlimited technical support via e-email and telephone during those hours. Technical support addresses problems with the Service; it does not function as a substitute for training or consulting services.
4.2 After-Hours Service Interruption. DPSI provides an after-hours outage reporting number to ensure availability of the service. The Service has been designed to ensure that it is available to You twenty-four (24) hours a day, seven (7) days a week (“24 x 7”). During standard support hours, all Service-related issues are routed through DPSI’s normal support channels. In the unlikely event of system failure outside of standard support hours, You will be supplied with a toll-free telephone number that will page an on-call Engineer. The on-call Engineer will respond with an estimated resolution time.
5. SERVICE LEVEL COMMITMENTS
5.1 Service Availability. DPSI commits to provide at least 99.4% availability of the Service. This commitment is exclusive of scheduled maintenance.
5.2 Scheduled Maintenance. Scheduled maintenance is defined as any system maintenance or upgrade that does not exceed 6 hours per month and is scheduled with at least forty-eight (48) hours prior notice to customers. Notice of scheduled maintenance will be provided to Your designated contact via a method chosen by DPSI, including, but not restricted to, electronic mail, telephone or fax. DPSI will make every effort to perform scheduled maintenance during periods of historically low usage.
5.3 Data Backups. Your Data will be backed up in its entirety every day to safeguard against the unlikely event of damage to the Service database.
5.4 Performance. DPSI can only guarantee performance of the Service to the point of its core routers. Beyond that, performance is dependent on the Internet and Your connection to the Internet. If You experience delayed response times, DPSI will work with You to pinpoint the source of the problem and will make any necessary changes if the problem exists within the data center.
5.5 Failures or Delays. Neither party shall be liable for any failure or delay due to any cause beyond its reasonable control including any acts of God, acts of war, sabotage, epidemic, riot, earthquake, flood, fire, other natural disaster, governmental act, embargo, labor shortage or dispute, failure of the Internet, communication line failure, power failure, computer equipment failure or failure of software not developed by DPSI, provided that the delayed party: (a) gives other party prompt notice of such cause, and (b) uses reasonable efforts to promptly correct such failure or delay in performance.
5.6 Amendments. DPSI reserves the right to amend this Service-level commitment upon sixty (60) days notice to You. In the event of any amendment resulting in a material reduction of the Service-level commitments, You may elect to terminate this Agreement without penalty by providing DPSI written notice of such termination within thirty (30) days following notice of such amendment. The Service-level commitments set forth in this section constitute Your sole remedies for any Service-level claims.
6. OPTIONAL ADD-ONS
6.1 Web Requester Modules. If licensed, these modules (“Requester Modules”) may only be made available to Your staff, contactors and other authorized personnel with whom You conduct business, and Your customers to whom you provide service(s). You may not allow a third party to use the Requester Modules for that party’s benefit.
6.2 Content of Notifications. The Service is capable of sending automatic notifications regarding requests to persons using the Request Modules. You are fully responsible for the content of information that may be transmitted to Your personnel in the automatic notifications.
7. SECURITY AND PRIVACY
7.1 Data Center Facility Provider. DPSI currently utilizes Dynamic Quest, a fully-managed, secure data center located in Greensboro, NC. DPSI reserves the right to change data center providers to a comparable provider.
7.2 Data Center Internet Connections. The data center uses redundant fiber-optic transmission lines and multiple telecom carriers, providing fast, reliable, high-bandwidth data transmissions.
7.3 Data Center Physical Security/Surveillance. To protect Your data and the Service, data center provides: SSAE 16 Type II certification; Video surveillance-inside and outside; Proximity ID cards with PIN certification; Biometric screening devices; Facility manned and monitored 24x7x365; Police, Fire and Rescue nearby; Power backup and fire suppression systems; High-performance climate control.
7.4 Ownership and Privacy of Data. The Data You create while using the Service is owned exclusively by You. DPSI will never make Your Data available to any third party. DPSI ensures the privacy of Your Data by utilizing industry best-practices for security.
7.5 Copies of Your Data. At the end of each Agreement Term, upon request, DPSI will provide You with a complete backup copy of Your Data at no charge. You may request an additional backup copy of Your Data at any time, but You will be charged a fee for this service. Any such copy of Your Data will be provided in Microsoft SQL Server format.
7.6 Data Analysis. DPSI reserves the right to perform analysis on the structure and organization of all databases associated with the Service in order to enhance the quality and functionality of our Service, and to assist in pinpointing the source of any problems that may arise in conjunction with Your Data or Your use of the Service.
8. CONFIDENTIALITY. The Service, and associated documentation and training materials, contain proprietary and confidential information, and are protected by Copyright laws and international treaties. You may not:
• Provide the documentation or training materials, or copies thereof, to parties that are not users of the Service.
• Reverse engineer, disassemble, decompile or make any attempt to discover the source code of this Service,
• Sublicense, rent, lease or lend any portion of the Service, documentation or training materials.
9.1 Limited Warranty. DPSI represents and warrants that the Service will perform in the manner specified in the Service documentation for the Term of the Agreement.
9.2 DISCLAIMER OF WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND DPSI EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10. LIMITS OF LIABILITY. IN NO EVENT WILL DPSI BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR GOOD WILL), EVEN IF DPSI HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. OUR TOTAL LIABILITY FOR DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE SERVICE FEES PAID BY YOU IN THE PRECEEDING TWELVE MONTHS FOR THE SERVICE LICENSED IN THIS AGREEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. INDEMNITY. DPSI agrees to indemnify and hold You harmless against any third party claims of infringement of a copyright, patent, or trade secret held by such third party that arise out of the use of the Service, documentation and training materials, and for any breach by DPSI of the Privacy provisions of Section 7.
12.1 Grounds for Termination. At the end of the Term specified in the iMaint Online Quotation, either party may elect to terminate this Agreement upon thirty (30) days written notice of termination to the other party. All disclaimers of warranties and limitations of liability shall survive any termination of this Agreement.
12.2 Payment of Service Fees. If You cancel prior to the end of the Term, You will be billed for the remaining months of the Term as set forth in the iMaint Online Quotation.
12.3 Backup Copy of Your Data. Upon termination of this Agreement, DPSI can provide You with a backup copy of Your Data in Microsoft SQL Server format. If the length of the Term has exceeded one year, DPSI will provide this backup at no charge. Once You have acknowledged receipt of Your Data, DPSI will permanently remove Your Data from our systems. If the length of the Term was less than one year, You must request delivery of Your Data and pay a fee for the backup. If You elect to not request delivery of Your Data, DPSI will permanently remove the Data from our systems thirty (30) days from the date of termination.
13. ARBITRATION. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of sixty (60) days, then, upon written notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Judgment upon the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof. The Arbitrator must be knowledgeable in the area of licensing of Internet-based computer software services. If the parties cannot agree on an Arbitrator or the venue, the American Arbitration Association will appoint an Arbitrator and the venue will be a city of at least 100,000 people somewhere approximately an equal distance between You and DPSI. If judgment includes any awards, such awards will not include any legal fees, as each party will be responsible for its own legal fees.
14. NOTICE. Any written notice required or permitted to be sent hereunder shall be sent in a manner requiring a signed receipt, such as Federal Express, courier delivery, or if mailed, registered or certified mail, return receipt requested. Telephone facsimile may be used provided there is a confirming return facsimile from the receiving party. Notice is effective upon receipt. This clause does not apply to notices that are not specified in this Agreement to be written. Notice to DPSI shall be addressed to: DPSI, Attention: Office of the President, 1801 Stanley Rd., Suite 301, Greensboro, NC 27407, or such other person or address as DPSI may designate. Notice sent to You shall be addressed to the Customer’s address as contained in the DPSI database of clients. You shall be responsible to notify DPSI of any changes to Your address.
15. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties with respect to the matters contained herein. There are no promises, covenants or undertakings other than those expressly set forth herein. This Agreement may not be modified, except by writing, and signed by authorized representatives of DPSI and Customer. This Agreement shall be binding upon and shall serve to the benefit of the parties to this Agreement and their respective successors and assigns. Title and paragraph headings contained in this Agreement are for convenient reference and do not constitute part of this Agreement.
16. PARTIAL INVALIDITY. Should any provision of this Agreement be held to be void, invalid, or inoperative, due to either United States or other country law, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though the disputed provisions were deleted.
17. APPLICABLE LAW. This Agreement shall be governed and interpreted in accordance with the substantive laws of the State of North Carolina and of the United States of America.